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A MANUAL OF 


THE LAW OF 


Roads and Highways 


IN THE 



STATE OF KANSAS. 


I 


By G. C. CLEMENS. 

H 


/ a 6 s^o 

TOPEKA, KANSAS: 

Geo. W. Crane & Co., Printers and Binders. 

1885. 








Entered according to act of Congress, in the year 1885, by 
GEORGE W. CRANE , 

In the office of the Librarian of Congress, at Washington. 


I 




PREFACE. 


The object of this manual is, to give full instruction to men who are not 
lawyers, concerning the law of roads in Kansas, and to give that instruc¬ 
tion in plain, every-day language, so that anyone may understand it with¬ 
out difficulty. The author supposes that his readers will be mostly farmers, 
township officers, county commissioners and clerks, surveyors, road over¬ 
seers and others, who are not lawyers, and some of them not learned 
scholars; and for this reason he has avoided the use of “hard words” 
which no one understands, and which only lawyers even pretend to com¬ 
prehend. But, doubtless, this simplicity of language will be pardoned by 
even lawyers and judges, and the book will be found to be useful to them, 
too. The arrangement of the book will be easily understood, and will, it 
is hoped, enable every reader to readily find exactly what he chances to be 
searching for. G. C. CLEMENS. 

Topeka, Kas., June 1, 1885. 



ARRANGEMENT OF THE MANUAL. 


PART I. 

Interpretation oe Road Laws. 

PART II. 

Collated Road Statutes. 

PART in. 

Forms and Record Entries. 



PART I. 


Interpretation of Road Laws. 



CONTENTS OF PART 1. 


Introduction. 

I. 

What the Petitioners must do. 

II. 

What the Commissioners are to do. 

HI. 

What the County Clerk is to do. 

IV. 

What the Viewers are to do. 

V. 

What the Land-Owner is to do. 

VI. 

What the Road Overseer is to do. 

VII. 

How to Contest a Road. 

VIII. 

Abandonment oe* Road. 



INTRODUCTION. 


The non-professional reader should understand this: That 
when the Legislature has passed a law, it is almost always 
doubtful what some provisions mean—what the Legislature 
intended by them; and it will frequently happen that even 
good lawyers will not agree as to what these provisions actu¬ 
ally require to be done. This doubt can only be settled by the 
courts; and can be settled finally by the Supreme Court alone. 
Hence, after a law has been for some years in force, a man who 
reads the statute by itself may make many very serious blun¬ 
ders and mistakes as to his duty, for every time the Supreme 
Court decides any question with reference to it, that decision 
becomes just as much a part of the statute as if it had been 
originally printed with it. It is, therefore, highly necessary 
that the reader should know, not only the statute, but what 
the Supreme Court has decided concerning it. These decisions 
are referred to in this book by giving the volumes and pages 
of the reports where what is said in this book, besides what is 
in the statute itself, has been laid down by the court. There 
are now thirty-two volumes of “Reports” containing the de¬ 
cisions of our Supreme Court; but only the last fifteen of them 
contain decisions with reference to the present .road law; and 
the reader must not rely too much upon earlier decisions, for 
they were made with reference to the old road law, which was 
different from the present one in several respects. Many ques¬ 
tions not yet decided by our Supreme Court have arisen in 
other States, and will, in course of time, arise here; hence, 
the decisions of the courts of other States have been collected 
and cited in this book, so far as, in the author’s judgment, our 
own Supreme Court would be likely to arrive at the same con¬ 
clusions. As our road law is virtually copied from the Ohio 
statute, the decisions of the Supreme Court of that State are 
particularly important, and, hence, they have been freely cited. 





















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I—WHAT THE PETITIONERS MUST DO. 


THE PETITION. 

Although power “to lay out, alter or discontinue anyroad” 
is given to the county commissioners in general terms, (sec¬ 
tion 16, chapter 25, General Statutes,) they have no authority 
to lay out, alter, nor vacate any road, unless a petition is pre¬ 
sented to them by twelve householders of the county, residing 
in the vicinity of the road. The hoard cannot act in the mat¬ 
ter of its own motion. (18 Kas. Rep. 386-396.) A house¬ 
holder is a person of full age, owning or occupying a house or 
a residence, and not as a hoarder or lodger. (Gen. Stat. 1868, 
p. 1000; Compiled Laws, 1881, p. 920.) In short, a house¬ 
holder is an adult person, who keeps house as master or mis¬ 
tress of the house. One needs not to he married in order to 
he a householder (4 Kas. Rep. 120); and a single woman may 
he one as well as a man. The petition must describe the pro¬ 
posed road “with sufficient certainty to enable a practical sur¬ 
veyor to run it.” (59 Indiana Rep. 54; 73 Indiana Rep. 454.) 
“ The description of a highway embraces its beginning, course 
and termination. If in any of these particulars it is so uncer¬ 
tain that a practical surveyor cannot place it, the entire road 
fails.” (73 Indiana Rep. 455;) The county commissioners 
have no power to lay out the road unless it will be of public 
utility (section 6), and, hence, the petition should aver that 
the proposed road will be so. Printed petitions, with blanks 
for the descriptions, etc., can usually be had of the county 
clerk. The proper form for a petition is given in the third 
part of this book. (See Forms and Record Entries.) 

PROOF AS TO PETITIONERS. 

It must be proved to the commissioners by some evidence 
that the petitmners are householders, and the record must show 
that, upon some kind of evidence, the commissioners consid¬ 
ered and decided that to be so, and it is proper to prove it by 
an affidavit. (18 Kas. Rep. 132, 398.) It should also be 
proved that the signatures are genuine. To merely say one 
is a householder is not evidence , for that is the very thing to be 



10 


KANSAS ROAD LAWS. 


proved; but the affidavit should state the facts which make 
him a householder. These suggestions will explain the object 
and use of the affidavit annexed to the form of a petition. 

THE BOND. 

One or more of the petitioners must give a bond, with sure¬ 
ties, to secure the expenses of the view, and this bond must be 
presented to the commissioners with the petition. (Section 1.) 
If the road shall be established by the commissioners, the 
county will pay all the expense, and this bond will then amount 
to nothing; but if the commissioners decide against the pro¬ 
posed road, then the bondsmen will have to pay the expenses 
of the proceedings, or be sued upon the bond. (Sections 1 
and 6.) These expenses will amount to between ten and fifteen 
dollars a day during the time the viewers are actually engaged 
iii making the view, and there may be some other small items 
of expense. (See section 11.) A printed bond, with proper 
blanks, may be usually had of the county clerk. A form for 
it is given in the third part of this book. 

PRESENTING PETITION. 

At the next meeting of the county commissioners, the peti¬ 
tion and bond should be presented to the board. If the board 
find that the petition is signed by proper parties, and enough 
of them—twelve; and that the proposed road is so described 
that a practical surveyor could take the description and run it; 
and that the bond is good and in proper form, they will make 
an order appointing viewers, and directing the county clerk to 
give notice of the petition and view. (See What the County 
Commissioners are to do, and What the County Clerk is 
to DO.) 

NOTICE TO LAND-OWNERS 

At least six days before the time fixed for the viewers to 
meet, the petitioners, or the principal petitioner, must serve 
notice of the time and place of the viewers’ meeting upon 
every owner of lands through which the road will run, who 
lives anywhere in the county, or has an agent living anywhere 
in the county; or if any of the lands are owned by a minor, an 
idiot, or an insane person, the notice must be served on that 
person’s guardian, if there be a guardian living in the county. 
An “agent” means, in this statute, one who has authority to 
act in such matters —not merely an agent for any purpose. (26 
Has. Rep. 509.) • If a land-owner does not live in the county, 



WHAT THE PETITIONERS MUST DO. 


11 


and has no agent living in tlie county and authorized to attend 
to such matters, no notice is to be served on him; and if a 
minor, an idiot, or an insane person has no guardian living in 
the county, no notice can be legally served upon such person. 
The object of this notice is to enable the land-owner to apply 
to the viewers for the assessment of damages. (12 Kas. Rep. 
531, 538.) 

WHO IS A LAND-OWNER? 

The' term land-owner in these proceedings has a wide mean¬ 
ing, and does not include merely the actual owner of the title 
to land, nor one who owns the land itself; but includes every 
person having any bights connected with the land, and which 
may be affected by the location of the road through it. Thus, 
a tenant may have a nursery upon the very land the road will 
take; and he would be a * land-owner ” upon whom notice must 
be served. If there are several owners, as heirs, notice should 
be given to each ; notice should be given to both landlord and 
tenant; the party giving a mortgage is still the owner— the 
mortgagee is not; if a lawsuit is going on between two claim¬ 
ants of the land, both should have notice; and if the land 
should be in possession of a receiver, he should have notice. 
In short, the safe course will be for the petitioners to give 
notice to everyone appearing to have any Idnd of interest in 
the land, and leave the viewers and the commissioners to settle 
the question of right. A form for this notice is given in the 
Forms and Record Entries. The principal petitioner must 
also give the surveyor six days’ notice. 

PROOF OF SERVICE OF NOTICE. 

The petitioner, or other person, serving the notices to land- 
owners, must make out and preserve a true copy of each notice 
served, and must make an affidavit that he did serve it, when, 
and how, and file these copies and affidavits with the county 
clerk before the next meeting of the county board. (See 
Forms.) Until these are filed; the commissioners cannot legally 
act upon the report of the viewers. (23 Kas. Rep. 732.) 

ROAD ON SECTION LINE. 

If the road is to run upon or along a section line, and the 
description shows that, and the petition states the fact, the 
county commissioners will dispense with the survey; and if all 
the land-owners sign a written agreement that the road (on or 
along a section line) may be located through their lands, the 



12 


KANSAS ROAD LA WS* 


viewers may be also dispensed with, and the assessment of 
damages will then be made by the county commissioners. 

The same proceedings are to be had upon a petition to alter 
and vacate a road as upon a petition to establish one; except 
that upon vacation of a road no damages are to be assessed. 
(10 Kas. Rep. 95, 99, 100.) 

RELOCATING ROAD. 

If the true line of an established public road has become 
doubtful or uncertain — the monuments or marked trees re¬ 
moved, for instance—it may be resurveyed under the direc¬ 
tion of viewers. But in such case, it is the old road that is to 
be found —the very road laid out—and the purpose is not to 
construe nor to correct the old survey. (20 Ohio State Rep. 
180.) 

ROAD ON COUNTY OR CITY LINE. 

When a road is to be established on or along a county or 
city line, the proceedings are somewhat similar to those in 
other cases; the main difference consists in the joint action of 
the two boards and the two sets of viewers. (Sections 9, 10.) 

APPEAL EROM COUNTY COMMISSIONERS. 

From the decision of the Supreme Court in the case of Wil¬ 
son vs. The County Commissioners of Cowley County , (18-Kas. 
Rep. 575), it seems that the petitioners may appeal from a re¬ 
fusal of the county board to establish a road, under the pro¬ 
visions of section 30 Oi chapter 25 of the General Statutes of 
1868, which section is as follow:. 

“ Sec. 30. Any person who shall be aggrieved by any decision 
of the board of commissioners, may appeal from the decision 
of such board to the district court of the same county, by 
causing a written notice of such appeal to be served on the 
clerk of such board, within thirty days after the making of 
such decision, and executing a bond to such county with suffi¬ 
cient security, to be approved by the clerk of said board, Con¬ 
ditioned for the faithful prosecution of such appeal', and the 
payment of all costs that shall be adjudged against the appel¬ 
lant.” 

The decision above referred to does not say that the ’peti¬ 
tioners may appeal, but that seems to be a necessary conse¬ 
quence of the decision. However, in States where the question 
has been litigated, it has been decided that there can be no 
appeal from the decision of the commissioners as to the ques- 



WHAT THE PETITIONERS MUST DO. 


13 


tion of public utility; and our Supreme Court is very likely to 
decide in the same way. Of course, if the county board re¬ 
fuses a petition arbitrarily, and without exercising fair, honest 
judgment, the district court can furnish the petitioners a rem¬ 
edy. (Last clause of sec. 1, chap. 28, Gen. Stat.) But an 
appeal to a jury in the district court, upon this question of dis¬ 
cretion, was certainly not contemplated by the Legislature. 
Neither, it has been held, can this question be determined 
upon a petition in error. (3 Mass. Bep. 406; 9 Gray [Mass.] 
Bep. 57; 6 Cushing’s [Mass.] Bep. 306; 10 Mo. Bep. 679.) 

PETITION IN ERROR. 

Another way to have the proceedings reviewed by the dis¬ 
trict court is by a “petition in error,” which will be fully 
enough explained under the head—“ How to Contest a Boad ; ” 
for this proceeding may be used by either party. 

"Whenever either an appeal or a proceeding in error is to be 
taken, the petitioners should at once consult counsel; for non¬ 
professional men can very easily make fatal mistakes in such 
proceedings. 



II— WHA T THE COMMISSIONERS ARE TO DO. 


ORDER APPOINTING VIEWERS. 

When a road petition is presented to them for their action, 
the county commissioners are to see that a satisfactory bond in 
proper form has been filed; and, if so, whether the petition is 
regular in form, and whether it properly and clearly describes 
the beginning, end and course of the proposed road; and they 
should require the evidence of some one, either by an afiidavit 
or by being sworn orally before them, that the signatures to 
the petition are genuine; that the petitioners live in the vicinity 
of the proposed road, and that they are “ householders.” What 
a householder is has been 1 explained already. (Page 9.) The 
necessity for this care is this: that unless the record shows dis¬ 
tinctly that the board actually decided that the petitioners 
were householders, the whole proceedings will be void from 
beginning to end. (18 Has. Rep. 129, 132.) If the petition 
and bond are in proper form and satisfactory, the commissioners 
are to so decide, and make an order appointing three house¬ 
holders of the county, who have no interest in the matter, to 
act as viewers , fixing a day for them to meet, and directing 
the county clerk to give notice of the petition and of the day 
the viewers are to meet; they are also to issue an order direct¬ 
ing the county surveyor to meet with the viewers at the time 
fixed. The time for the meeting of the viewers must be fixed 
at not more than twenty days after the notice expires, which is 
twenty days; and hence must be not more than forty days 
from the time the notice is first given. (Section 3.) How the 
record is to be made and entered will be explained when we 
come to “What the County Clerk is to do.” 

FAILURE OF VIEWERS TO MEET. 

If the commissioners are notified and satisfied afterwards 
that the viewers failed to meet at the time fixed, and also on 
the next day, a new order must be made, directing a new 
notice and fixing another time for the meeting of the viewers. 
(Section 3.) 



WHAT THE COMMISSIONERS ARE TO DO. 


15 


READING OF REPORT OF VIEWERS. 

When the viewers have reported, the commissioners are to 
have the report read aloud before them, so that any one pres¬ 
ent and wishing to object to it may know it has been brought 
up for consideration. (Section 6.) If the report is favorable, 
the commissioners should see whether copies of the notices to 
land-owners, with the affidavits showing service, are on file; 
and if not, or if they are not regular in every way, the board 
should decline to proceed further until this requirement of the 
law has been complied with; for unless it is complied with, 
the commissioners have no power to proceed. (23 Kas. Rep. 
731, 732.) A land-owner may waive the six days’ notice, and 
if he actually presents his claim for damages to the viewers, 
then it is immaterial whether the six days’ notice was actually 
served upon him or not. Of course, where that is so, the 
commissioners need not insist upon the filing of the notice and 
affidavit as to him. (25 Kas. Rep. 517, 518.) 

CAUTION TO COMMISSIONERS AS TO NOTICE. 

It is highly important, too, that the commissioners should 
see to it that the county clerk has properly given the required 
notice in the proper manner and for the proper length of time; 
for if he has not done so, the commissioners have no jurisdic¬ 
tion to proceed; and no matter how good the record may say 
the notice was, if none was in fact given, anybody interested 
may prove this afterwards, and the whole proceedings will fall. 
(32 Kas. Rep. 509 and 555-557.) The statute does not require 
any proof before the commissioners that this notice has been 
properly given, but provides only that the commissioners shall 
cause a record of the notice to be entered on the journal. (32 
Kas. 555-558.) The commissioners are, however, sworn offi¬ 
cers, and are not expected to make a record which for aught 
they know may be a sheer falsehood. They are to see to it 
that the record they make is true. The notice to be given by 
the clerk is no mere idle form; its object is “that all persons 
interested may be heard before the viewers.” (32 Kas. Rep. 
557.) 

ACTING UPON THE REPORT OF THE VIEWERS. 

But if the notices have been properly given to the land- 
owners, or waived by them; if the copies of notices served 
and the affidavits of the service have been properly made and 
filed; if the county clerk has properly given the notice required 



16 


KANSAS ROAD LA WS. 


to be given; and if the proceedings of the viewers themselves 
seem to have been regular and valid, then the county com¬ 
missioners are to consider and act upon the favorable report of 
the viewers (section 6); and in doing so are to act as a court, 
and exercise a sound, sensible discretion. For even though 
the proceedings be all regular, and the report of the viewers 
strongly favorable, yet the petitioners are not, for these reasons, 
absolutely entitled to their road as a matter of right; but the 
commissioners are to remember that the taxpayers all over the 
county are to help pay for the road, if granted, and they are 
to use their own good judgment as the only protection those 
taxpayers can have in the proceedings. In short, the commis¬ 
sioners are not mere clerks to record the decision of the viewers; 
but the report of the viewers is made for the information and 
guidance of the commissioners, who are to deliberately and 
carefully balance the expense of opening the road, on the one 
hand, against the benefit and advantage of the road to ilie 
'public, on the other. (27 Kas. Rep. 659-663.) The question 
for the board to decide is, not whether the road will be useful 
and advantageous to the petitioners merely, but whether it “will 
be of public utility” (section 6); for only public roads are to be 
made at the expense of the public. However, the law itself 
seems to imply that if a road is necessary or highly beneficial to 
twelve householders, it is of public utility (section 1); for all 
the proceedings are based upon that theory. So all that can 
be said, at last, is, that the commissioners are to exercise sound, 
liberal and honest judgment as to the usefulness of the pro¬ 
posed road. 

ESTABLISHING ROAD. 

If they think the road will be of public utility, then—if the 
proceedings have been regular and legal—they are to make 
an order directing the county clerk to properly record the re¬ 
port, survey and plat, and that order establishes the road; and 
the commissioners are then to issue an order requiring the 
trustees of the townships traversed by it to cause it to be 
opened to public travel. (Section 6.) 

BOARD MAY ADJOURN PROCEEDINGS. 

Of course the board is not compelled to act finally at the 
first meeting, upon the report of the viewers, hut may adjourn 
its consideration as it may any other proceeding requiring the 
exercise of enlightened judgment. (12 Has. Rep. 17-25.) 



WHAT THE COMMISSIONERS ARE TO DO. 


17 


REVISING ASSESSMENT OF DAMAGES. 

The next duty of the commissioners is to review the allow¬ 
ances made by the viewers for damages to land-owners, and 
this subject will he considered when we come to “What the 
Viewers are to do.” (Section 7.) 

ACTION UPON UNFAVORABLE REPORT. 

If the report of the viewers be against the proposed road, 
and the commissioners think the report a just one, and are of 
•opinion that the road is not necessary, the proceedings are at 
an end, upon the making of the order by the commissioners 
.so declaring; and thereupon the bondsmen must pay the ex¬ 
penses that have accrued, or be sued upon their bond, unless, 
of course, the payment is suspended by an appeal or other 
proceedings. An appeal, however, from the decision in such 
a case—confirmation of an unfavorable report—can accomplish 
hut little, if anything, for the petitioners except additional ex¬ 
pense; and it would be better, speedier, and perhaps cheaper, 
to begin over again. ( See Part III, for the proper record entry 
upon an unfavorable report confirmed.) 

But suppose the report he unfavorable, and the commis¬ 
sioners are of the opinion that it is not a just one, or that the 
road is necessary, what then is to be done? The statute 
makes no provision for such a case as this. It does not au¬ 
thorize the commissioners to establish the road unless the 
report is favorable; nor does it authorize them to stop the pro¬ 
ceedings unless there is an unfavorable report and they are of 
opinion that the report is just and the road unnecessary. (Sec¬ 
tion 6.) It seems to be the practice of some county boards to 
set aside the report in such a case, and order a new view; but 
the validity of such a practice admits of very serious doubt; 
for this is a statutory proceeding, and no more can be done 
than the statute authorizes. Besides, where the viewers fail 
to meet at the appointed time, the statute expressly provides 
for a new order of view; and by providing thus expressly for 
this particular case, may it not be supposed that a new order 
of view is authorized in no other case whatever? It is the 
author’s opinion that in such a case a new petition should be 
filed, praying for a road, precisely as if no petition had been 
already presented; and that the only effect of the opinion of 
the commissioners — that the unfavorable report is unjust, or 
that the road is necessary—is to relieve the petitioners from the 
payment of the costs and expenses. A new petition can be 
filed and carried through, even though an adverse report on a 



18 


KANSAS ROAD LA WS. 


former one by the same petitioners for the same road has been 
confirmed as just, and the road declared unnecessary; for the 
decision of the commissioners does not have the effect of bar¬ 
ring further application, as if it were the judgment of a court. 
(52 Yt. Rep. 77.) 

The same proceedings are to be had upon a petition to alter 
or to vacate a road as if it were a petition to lay out a new one, 
except that no damages are allowed land-owners, usually, upon 
the vacation of a highway. (10 Kas. Rep. 95, 99,100.) 



HI —WHAT THE COUNTY CLERK IS TO DO. 


THE ROAD RECORD. 

By a statute already in force when the present road law was 
passed, the county clerk is required to keep a “road record.” 
This provision is section 49 of chapter 25 of the General Stat¬ 
utes of 1868, and is as follows: 

“ Sec. 49. It shall he the duty of the county clerk to record 
in a proper book, to be called the ‘road record,’ a record of all 
proceedings in regard to laying out and establishing roads in 
the county, which said record shall include the report of the 
commissioners [viewers] and surveyor, locating such roads, and 
maps thereof, and such records, or duly certified copies thereof, 
are hereby declared prima facie evidence of the statements 
therein contained, in the courts of this State.” 

The new law does not change this provision, except that the 
record of the notice to be given by the county clerk is to be 
entered on the journal. (Section 3.) It seems, therefore, that 
this notice should be recorded in both the journal and the “ road 
record;” for it is evidently intended that the “road record” 
shall contain a complete history of all the road proceedings. 

RECORD ENTRIES. 

The clerk has nothing to do with the approval of the bond 
to be given by the petitioners. That is to be approved by the 
commissioners when the petition is presented to them. Except 
to file and preserve papers, the clerk has nothing to do with 
the matter until the commissioners act upon the petition. It 
is the usual custom, however, for the clerk to put in proper 
and legal form the orders and proceedings of the board; and, 
hence, it is important that he should be prepared to make 
proper entries under the law. A complete set of entries to be 
made upon the record will be found in Part III of this man¬ 
ual; and it may be of interest to county clerks that a “ Road 
Record” containing these entries, with blank spaces, so that 
little writing will be necessary to make up a complete record 
of each road, is prepared and sold by George W. Crane & Co., 
blank book manufacturers, Topeka, Kansas. The “Road 
Record” entries are taken from the forms provided by the au¬ 
thor to accompany this manual, and a full set of notices, peti¬ 
tions, &c., corresponding with the author’s forms and with the 
“Road Record,” is also published by the same firm. 



IV—WHAT THE VIEWERS ARE TO DO . 


SHOULD LISTEN TO ALL PARTIES. 

The viewers are not appointed simply to assess damages, 
but to listen fairly to all persons interested who come before 
them to oppose or advocate the road, and to come to an honest 
and reasonable conclusion just as a court would be expected to 
do. They are to the county commissioners what a referee is 
to a court. The county commissioners cannot, themselves, go 
out and examine every road proposed, nor listen to every man 
who has anything to say, either against it or in favor of it; for 
there would be no time left for the board to attend to other 
county affairs; hence, the law has provided for these viewers 
to go out instead of the commissioners, with • nothing else to 
do, and with plenty of time to investigate thoroughly, so they 
can tell the commissioners what they have found out about the 
matter, and aid the hoard with their advisory opinion, based 
upon what they have seen and heard. In short, the viewers 
are assistants of the hoard—they are to be the eyes and ears 
of the commissioners. To illustrate 1 : Suppose a dozen of us have 
some thoughts of purchasing a distant business—a mine or 
something of that sort—but we wish to have some reliable in¬ 
formation about it before we invest, for, so far, we have had 
all our information from the parties desiring to sell. We meet 
together and agree to send three of our members to examine 
into the matter and report to us what they find out, and to give 
us their honest opinion whether we should buy or not. How 
these three men would be our “ viewers,” and what we should 
expect of them , is precisely what the law authorizes the county 
commissioners to expect of their “ viewers,” so far as concerns 
the question whether the road should be laid out or not. The 
report should give the board full information as to all good 
reasons urged by people for or against the road, so that the 
commissioners may sit down and use their own judgment on all 
the circumstances. The viewers are to give their opinion, and 
the commissioners are to respect it, and to even rely upon it in 
case of serious doubt; but at the same time, the report should 
be so full and so fair that the commissioners may be able to 



WHAT THE VIEWERS ARE TO DO. 


21 


come to their own conclusion from what it states. ISTo viewer 
should he so proud and vain of his opinion as to care for a 
moment whether the commissioners agree with him or not. 
He is simply to use his honest judgment, and then state all the 
facts in such a way that “the other side” may have every op¬ 
portunity to convince the hoard that he is wrong. That is 
honest and fair, and he is simply doing to others as, under 
like circumstances, he would have others do to him. 

In order to be thus fair, the viewers should not “hurry.” 
They are there to listen, and they should do it patiently, atten¬ 
tively, and courteously . They should remember that farmers 
are not all college-bred, and that the majority of them are 
neither logical, nor practical men of affairs. They must learn, 
what all lawyers have to learn, that very few men can go 
straight on with their stories, and that it saves time in the end 
to let most of them go right on in their own w 7 ay till they get 
through. It is not likely that any man will come before the 
viewers to say anything about the matter unless he has some 
reason that, to him , seems a good one, why the road should or 
should not be laid out; and it is but simple justice that the 
viewers shall endeavor to find out from his “talk” what that 
reason is, and then consider it, and give it whatever weight it 
deserves. If viewers were to always act thus fairly and cour¬ 
teously, every man would feel that he had had a fair hearing, 
and would have confidence that the viewers would do what 
was right, and, as a result, a contest would be a rare occur¬ 
rence. Every man likes to be treated as if he were somebody. 
ISTo man likes to be “snubbed.” Let the viewers remember 
that they are to stand impartial between those who do and 
those who do not want the road; and that they are to consider 
“the utility, convenience, and inconvenience, and expense, 
which will result to individuals , as well as to the public,” if the 
road should be established. (Sec. 5.) 

ASSESSING DAMAGES. 

But, while this is one of the duties of the viewers, it is not 
the only one. They are also to “assess and determine the 
amount of damages sustained by any person or persons through 
w ? hose premises the said road is proposed to be established” 
(Sec. 5); and here again they are to act as impartial arbitrators 
between the taxpayers of the county and the land-owners 
damaged by the proposed road. They are to so judge that no 
land-owners shall lose anything, nor gain any profit at the 
expense of the taxpayers of the county. The viewers are to 



22 


KANSAS ROAD LA WS. 


make an actual estimate of each man’s damages according to 
legal rules; they are not to guess at the amount, nor “lump” 
it; but they are to sit down and figure it out according to 
established rules. If a land-owner appeals, as he may, to the 
district court, the jury will be required to estimate the dam¬ 
ages by items in dollars and cents, and to judge of the benefits 
to be set off in the same cool, methodical way; and why, then, 
should not the viewers act in precisely the same way, and upon 
the very same principles as if they were sitting as a jury in 
the district court under the court’s instructions? It must 
come to that at last, and the capricious estimates of the com¬ 
missioners or viewers only serve to exasperate men to appeal, 
and burden the taxpayers with the costs such folly and hard¬ 
heartedness incurs. Everj’thing has been settled as to these 
matters, and we shall now see how the viewers are to go about 
the assessment of damages. 

First, The viewers are to set off against the damages to any 
one any direct, peculiar benefit his land will derive from the 
road. What is to be considered such a benefit will be stated 
presently. If the benefits equal the amount of damages, then 
no damages are to be allowed. If the benefits are less, then 
the difference only is to be allowed. 

Second , The public does not become the owner of the land 
over which the road runs; it acquires only a right to use it for 
the purposes of travel. The land still belongs to the former 
owner, and if the road should ever be vacated, he has the land 
as fully as ever. The public takes nothing except what is 
actually necessary to make the road a good and sufficient thor¬ 
oughfare for public travel; so that the trees, grass, hedges, 
fences, buildings, mines, quarries, springs, water-courses, and, 
in short, everything connected with the land over which the 
road is laid out, and not actually necessary to the road as a 
road, still belongs to the owner of the land, and the public gets 
no right to such things. He may remove all these things, or 
use them, or any of them, in any manner he chooses, provided 
that in so doing he does not interfere with the use of the road 
as a public highway. This is the only restriction upon his 
right to these things, or to their use, after the road is laid out. 
(10 Kas. Rep. 607; 21 Has. Rep. 247.) So the owner is not 
necessarily entitled to the full value of the land over which 
the road runs; for there may be trees and the like upon it, 
which are still his, and which may be worth money. It would 
be better, however, and would come nearer exact justice, for 
the viewers to make a sort of debit and credit account of the 



WHAT THE VIEWERS ARE TO DO . 


23 


whole matter, and strike a balance; and so, in the first instance, 
the land taken should be measured, or estimated in acres, and 
the full actual value should be set down to the owner’s credit 
as “ apparent damagesand whatever will still be left to him 
after the land is taken and paid for, and which has a money 
value, can he set down as “set-offs to apparent damages;” and 
the whole thing will be thus equalized. 

Third , The elements which go to make up the owner’s dam¬ 
ages are as follows: 

(a) The cost of removing a fence, so as to set it back off of 
the road. (17 Kas. Rep. 59.) 

(b) If the road cuts the land in two, so as to require an addi¬ 
tional fence, or, if for any reason, the road makes a new fence 
necessary, he is entitled to what it will cost to build it; and he 
ought not to be stinted, hut should he allowed all the fence 
will actually cost. (20 Kas. Rep. 16; 10 Kas. Rep. 608.) 

(c) The injury to the rest of the property by cutting off a part. 
(17 Kas. Rep. 60.) And the injury to the whole tract is to be 
■considered, not merely to the immediate part of it. As, for 
instance, if a large tract is used for a stock ranche, and it is 
out up and rendered less convenient, this injury is to be taken 
into consideration. (25 Kas. Rep. 421.) In short, any reason¬ 
ably probable inconvenience, whether present or prospective, 
should be taken into consideration in the assessment of dam¬ 
ages. (24 Kas. Rep. 745; 10 Kas. Rep. 439.) 

Thus, in a case in Yew York, a proposed road ran over the 
grave of one who had been buried there more than fifty years 
before; and it was decided that the next of kin was entitled as 
damages to be indemnified for what removal and suitable re¬ 
interment of his ancestor’s remains would cost. (4 Bradford’s 
Y. Y. Rep. 503.) 

But there is a class of injuries which cannot be accurately 
■estimated; the injury is clear enough, but it is impossible to 
tell how much , in dollars and cents, the party is damaged by it. 
Damages arising from injuries of this character are, in law, 
called “speculative” damages—that is, damages computed by 
mere guess —and are never allowed, because there is no way in 
which they can be figured out. (39 Barbour’s Y. Y. Rep. 266.) 
Thus, where a jury allowed damages to a party for the expo¬ 
sure of his orchard to thefts by tramps and others, passing 
along a railroad running through his land, the Supreme Court 
decided that no such damages could be allowed, because, neces¬ 
sarily, they were sheer guess-work. (32 Kas. Rep. 609.) 

The safest test in assessing damages for any, particular al- 



24 


KANSAS ROAD LAWS. 


leged injury, is to see whether any amount can he actually 
arrived at by calculation. Thus, a land-owner says: “That 
road will run between my house and my barn, which will be a 
great injury to my place.” “Very well,” say the viewers,, 
“how much in money will that injury amount to?” “Five 
hundred dollars, at least! ” says the land-owner. The viewers- 
take out their pencils, and say: “How, give us the items that 
make up that amount, so we can figure it out. You know, we- 
can’t guess at it, nor ‘lump.’ it, but we must be able to state 
just how we settled on that particular amount, so the county 
commissioners can see whether we have allowed you too- 
much.” He may tell what new fences will cost; but when he 
is asked to coolly calculate, on some sound basis, the present 
amount of injury arising from the mere fact that his house and 
barn are henceforth to be upon opposite sides of a public road r 
he will have a puzzle which it is not at all likely he can solve. 
All can see that it may be undesirable to have the road there,, 
and all may even admit that its location is an actual injury; 
yet it is one of those injuries that cannot be accurately ex¬ 
pressed in dollars and cents. The object of giving a land- 
owner damages, is to enable him to place himself in as good a 
pecuniary position as he would have been if there had been no 
road laid out. With the money allowed him for a new fence, 
he can get a new fence and his injury is healed; but if you 
give a thousand dollars damages for having his house and barn 
on opposite sides of the road, he cannot take that thousand 
dollars and move either his farm or the road. He can, how¬ 
ever, move his barn or his house, and here comes in an element 
of damages that can be understood. The injury of having a 
road between his house and his barn can be estimated only by 
estimating the expense of moving the house or barn to the 
other side of the road, and the additional expense of repairing 
the injury consequent upon the removal. So, in every case 
where damages are claimed for an injury, and the injury is a 
real one, the viewers should reflect by what means the injury 
can be repaired, and then what those means would probably 
cost; and this amount will be the damages from that particu¬ 
lar injury. 

( d) In addition to all these items, the viewers should ascer¬ 
tain the precise amount of the party’s land embraced in the 
road, and allow him for this at its fair value per acre. 

OPINIONS AS TO DAMAGES. 

The opinions of witnesses as to how much a party is damaged 
are not good evidence; for, as before stated, the damage is not 



WHAT THE VIEWERS ARE TO DO. 


25 


a mere matter of opinion, but of calculation; and, of course, as 
the whole matter may come before a court at last, the viewers 
ought not to base their assessment upon anything but legal 
grounds. Why shall not the viewers seek to decide according 
to law in the first instance , and thus render an appeal and re¬ 
vision unnecessary in order to give a party justice ? Opinions 
as to the amount of damages are not legal evidence, and ought 
not to be relied upon. (21 Kas. Rep. 253.) 

BENEFITS AS OFFSETS TO DAMAGES. 

When all the elements of damage have thus been ascer¬ 
tained, and the total amount footed up, the viewers should 
next determine what benefits, if any, the claimant’s land will 
derive from the construction of the road, and deduct the 
amount of these from the total amount of damages. Here, 
too, the same cold rule must be applied, and mere fancy must 
not be indulged. Unless a benefit is worth so much in dollars 
and cents, so as to be capable of rational computation, it is a 
purely “ speculative,” fanciful benefit, and cannot be taken into 
account anymore than can a “speculative” injury. 

Before any benefit can be considered at all by the viewers, 
it must be clear that it is one which the particular claimant 
alone t will enjoy. The advantage of having a public road in 
his vicinity is one common to the whole community; it is a 
'public advantage; and the claimant pays in taxes for all public 
conveniences. (17 Kas. Rep. 59.) Neither is the increase in 
the market value of the land because of the road to be con¬ 
sidered; for however much of a benefit this may be to the 
owner , it confers no benefit upon the land itself. In short, the 
only benefits which can be properly considered are such as 
add to the usefulness or convenience of the land as land —not 
to its market value, but to its value for use (21 Kas. Rep. 252; 
27 Kas. Rep. 391-393), and which are, at the same time, pe¬ 
culiar to the particular tract of land—not common to all the 
lands in the neighborhood. (17 Kas. Rep. 58; 21 Kas. Rep. 
247; 27 Kas. Rep. 391-393.) 

Thus, if a stream on the land will be bridged by the road; 
if the land will be drained; or if any similar improvement of 
this kind will result from the laying out and opening of the 
road, these improvements may be properly considered. (21 
Kas. Rep. 252.) In the language of the Supreme Court, the 
benefit to be considered, must be “something which affects 
the land itself, directly and proximately;” “something which, 
increases the actual or usable value of the land, as well as the 



26 


KANSAS ROAD LA WS. 


market or salable value thereof, and not such as increase 
merely the market or salable value alone.” It must be some¬ 
thing which gives increased value to “the use of the land as 
land ” to be used—not to be sold, merely. The benefits must 
be “such as are direct, certain and proximate, and not such as 
are indirect, contingent, or remote.” (21 Kas. Rep. 247-252.) 

LAND-OWNER MUST MAKE WRITTEN APPLICATION. 

The viewers have no right nor'power to assess damages in 
favor of anyone who does not make his application in writing, 
giving a description of his land, etc. Though the land-owner 
may come before the viewers, and personally demand the 
assessment of his damages, the demand cannot be heeded. 
He must make a regular, written application or the viewers are 
powerless to consider his claim. (24 Ohio St. Rep. 467-471.) 
Rut it is no more than common honesty that the viewers 
should tell him this in time, and not leave him to find out 
afterward that he has lost his claim through ignorance of the 
law. In short, viewers should, in all they do, remember that 
ignorance of the law is very usual, and that it becomes no 
gentleman nor honest man to make that ignorance in another 
the cause of suffering or loss. It will be seen, presently, that 
nothing whatever will excuse the land-owner’s failure to make 
his written application to the viewers. If he does not present 
it, he is forever barred from claiming compensation. 

INTEREST OF APPLICANT FOR DAMAGES. 

Supposing a proper application to have been made, the next 
question will be, What interest has the applicant in the land? 
For although he may be in possession, yet if he has no right 
to the land, as, if it should be Government land upon which he 
is a mere “squatter,” he cannot be allowed any damages for 
injury to it. (18 Kas. Rep. 124-128.) Each claimant is en¬ 
titled to damages only to the extent of his own interest in the 
land. If there are several owners, each is entitled to only the 
damage to his share. (18 Kas. Rep. 128.) If one man owns 
the land and another the crops, the land-owner is not entitled 
to any compensation for damage to the crops, nor is the owner 
of the crops entitled to any assessment of damages as to the 
land. (18 Kas. Rep. 128.) And in such cases, each party in¬ 
terested must make his own written application; if one applies 
and the other does not, the viewers can assess damages in 
favor of only the one who applies, and only as to his own 
.nterest. One in possession of land under a bond for a deed, 



WHAT THE VIEWERS ARE TO DO. 


27 


however, is considered as the owner of the land in these pro¬ 
ceedings, and he alone is entitled to the damages, (15 Kas. 
Rep. 427; 17 Kas. Rep. 240-246.) 

Ko damages can ordinarily be allowed any one upon the va¬ 
cation of a road. (10 Kas. Rep. 95, 99,100.) 

A SUGGESTION. 

When it is remembered that almost every question that can 
arise in these proceedings, however puzzling it may seem, has 
been decided by the Supreme Court of some State, and that 
our own Supreme Court is constantly deciding new questions 
under our own road law; and that matters not yet thought of, 
and not mentioned at all in this nor in any other book, may at 
any time be thus brought up and decided; and when it is 
further remembered that although road viewers can rarely 
ever be thoroughly-posted lawyers, yet their proceedings may 
at auy time be subjected to the severest judicial scrutiny, and 
if found void or defective, or contrary to some decision of the 
Supreme Court, may result in the most serious injury to the 
people interested, as well as to the county, it is obvious that 
upon the question of damages, the viewers should have the 
assistance of zealous counsel who will reason out these ques¬ 
tions, and hunt up and show to the viewers every decision that 
has been made anywhere upon the matters to be decided. 
The viewers have no authority to employ advisory counsel, 
and even if they had, such counsel would be of little use; for 
the matter would be of very little interest to him. But if 
each claimant of damages were to employ counsel to advocate 
Ms claim before the viewers, such counsel would be zealous in 
looking up and thoroughly studying that 'particular claim , and 
would, if honest in his profession, present to the viewers every 
reason and every decision in favor of that claim; and, thus, 
every claim for damages would be so fully presented by per¬ 
sonal zeal and industry that the viewers would be as fully in¬ 
formed, and as capable of deciding legally and justly, as any 
court; for this is the very way in which judges are. instructed 
as to each case that comes before them. It is clear, however, 
that if claimants were to employ counsel to leave their offices 
shut up, and go out miles into the country to present their 
cases while the viewers were there on the ground, the expense 
would be burdensome, and, besides, the distance from law 
books would make the lawyer’s mere “talk” of little real 
assistance to the viewers. Is not this, then, a good sugges¬ 
tion? Let the viewers, as each application for damages is 



28 


KANSAS ROAD LA WS. 


handed them, or, by a general notice to land-owners, inform 
the claimants that on a certain day, at a designated place, the 
viewers will sit at the county seat for the purpose of hearing 
arguments by counsel in favor of all claimants who choose to 
have their claims so presented; and suggest to the claimants 
that several of them may club together and employ counsel at 
little expense to each claimant; and that the viewers are 
perfectly willing and desirous to hear argument; then, at the 
appointed time and place—perhaps at the court house, or in 
some law office—the viewers could sit precisely as a court; if, 
during counsel’s argument, any viewer wished information as 
to any particular question that occurred to him, he could re¬ 
quest counsel to discuss that question in his argument; and 
thus the viewers could rest secure that they had gathered all 
the information possible upon the question of damages; and 
after the discussion, could, upon private consultation, decide 
upon the amount of damages to be awarded to each claimant. 
Such a proceeding would be perfectly valid; for the viewers 
are not required to decide upon their report at the very time 
of the view and survey; but the view is for the same purpose 
as a view of premises by a jury during a trial in court; it is 
to enable the viewers to judge more intelligently of the mat¬ 
ters to be decided. The report may be made at any time “ on 
or before the first day” of the next session of the county com¬ 
missioners. (Section 6.) And it has been expressly decided 
that the viewers may adjourn to meet at another time, and 
that even after they have already agreed upon their report, 
they may change it, and even report the other way. Until 
their report is filed with the county clerk, they have complete 
control over it. (17 Ohio Rep. 101-104.) Besides, a mere 
view will not teach them who owns this or that tract of land, 
nor what it will cost to move a fence or to build one; nor even 
the value of land in that vicinity. The law requires these 
things to be considered by the viewers, and there must be 
some lawful means for securing reliable information; and as 
the report of the viewers will, on appeal, be examined in the 
light of the strict rules of law, it seems that the viewers should, 
in the first instance, be entitled to have the means of making 
a strictly legal assessment, with a full knowledge of all the 
circumstances. But, let the reader remember that this is but 
the suggestion of the author of this book; it has not been de¬ 
cided to be valid; and although the author has little doubt 
about the propriety of his suggestion, his readers must use 
their own judgment as to accepting it. 



WHAT THE VIEWERS ARE TO DO. 


29 


DECIDING UPON REPORT. 

The viewers having estimated all the damages that will have 
to he paid by the county if the road should be established, and 
having carefully considered the importance of the road, must 
decide whether, in view of the expense, the road is needed 
badly enough by the public to justify its establishment. But 
the public importance of a road does not depend upon whether 
the whole county will actually travel it. It may be of public 
utility, although it serves, principally, only to give one man a 
chance to get to town over a public highway. “The State is 
not bound to allow the citizens to be walled in, insulated, im¬ 
prisoned; but may provide them a way of deliverance” (25 
Iowa Rep. 546-547); and “the fact that a road has no outlet 
or egress at one end, and that it primarily and principally 
benefits a single individual, does not destroy its character as a 
public highway, nor prevent the public from taking private 
property for it.” (12 Kas. Rep. 17-25.) What is a road of 
“public utility?” Simply a road required for public conveni¬ 
ence; it need not be absolutely necessary to the public; but it 
is of “public utility” if it will be generally useful and con¬ 
venient to have such a road. (86 Ind. Rep. 68.) By usefulness 
to the public we are not to understand that everybody needs 
the particular highway as a means of universal travel; but 
whether it will be useful to the community to have a road over 
which a few people, or even one person, can reach a school, a 
voting place, the county seat, or the like. The public wants 
men to serve on juries, to testify in courts as witnesses, to 
attend musters of militia, to vote, to get and send letters, pub¬ 
lic notices and newspapers, and to send their children to school 
and their products and wares to a ready market; and, hence, a 
road enabling citizens to do these things, although it serves 
this purpose as to but a very few, or to only one person, is so 
far of utility to the public, which needs to have its citizens take 
part in public affairs, grow intelligent and engage in traffic. 
The question is not how many people will likely travel the 
road, but whether it will be beneficial to the public to have the 
people who will travel it be able to get away from home for 
public or commercial purposes. However, even if the road be 
of such public utility as to justify, the necessary expense to the 
county if established, it still does not follow that the viewers 
should make a favorable report; for they are to consider the 
inconvenience it may cause to land-owners, and for which they 
cannot be entirely compensated by the damages to be paid. 



30 


KANSAS ROAD LA JTS. 


The road as prayed for may run through a beautiful grove, or 
park or pleasure ground planted many years ago, and dear to 
a family from its past associations; it may traverse the graves 
of the dead; or, in many a way, it may break in harshly upon 
memories, pleasures or laudable tastes of citizens in such a 
manner that sordid dollars and cents can afford no compensa¬ 
tion for the wounded hearts or thwarted tastes; and the statute 
requires the .viewers to consider all these things. The question 
for the viewers to decide is, not whether a road is necessary, 
but whether the particular road “as prayed for” is so far 
necessary as to justify, not only the expense to the county, hut 
the inconvenience to private citizens; for if a road he neces¬ 
sary, yet if one could he laid out just as well without so much 
expense, or without inconvenience to private citizens, while 
the particular road proposed will be much more expensive, or 
will put some land-owner to great inconvenience or annoyance, 
the viewers should unquestionably decide against the proposed 
road. In short, the viewers are to consider three things: the 
benefit the road will be to, the public, the expense it will be to 
the county, and the inconvenience or annoyance it will cause 
to particular persons; but public necessity is supreme, and if 
the public necessity cannot be supplied in any other way than 
by the very road proposed, then the expense to the county and 
the inconvenience to private persons cannot stand in the way 
of establishing that road. 

PREPARATION, FORM AND FILING OF REPORTS. 

When the viewers have heard all parties interested who have 
appeared before them, assessed all the damages properly ap¬ 
plied for, and fully made up their minds whether they will 
report for, or against, the proposed road, their next and final 
duty is to draw up their report, sign it, and give it to one of 
their number to be delivered to the county clerk. The report 
may be signed by two of the viewers, if the third does not 
agree to it, or does not choose to sign it. (8 Kas. Rep. 258.) 
Usually, and perhaps properly, the report recites that the 
viewers have viewed the road, caused a survey to be made, etc.; 
but the statute requires, in terms, no more of the viewers than 
“a report in writing, stating their opinion in favor or against 
the establishment * * * of said road, or any part thereof,” 
and that they shall “set lorth the reason of the same.” (Sec. 
6.) The Supreme Court has decided that “no elaborate pre¬ 
sentation of reasons pro and con is required,” and that a report 
which simply s.ays that the proposed road “is practicable,” and 



WHAT THE VIEWERS ARE TO DO. 


31 


that the viewers “recommend its adoption,” is sufficient (8 
Kas. Rep. 259); hut it was not altogether necessary for the 
court to decide this in the particular case, and it is not at all 
unlikely that when it does become necessary, the court will say 
such a decision was wrong; for it violates both the letter and 
spirit of the law. The law plainly requires, in so many words, 
that the viewers shall “set forth the reasons of” their opinion; 
and to say that the road is “practicable” is surely not setting 
forth much of a reason why private property should he confis¬ 
cated for it, or the taxpayers of the county burdened with the 
expense of establishing it! It is “practicable” to lay out two 
roads side by side, yet there may be some doubt as to the 
public necessity for doing so. Neither is it a reason for the 
viewers to say they “recommend” the road; for that is no 
more than a favorable opinion —it is no reason for an opinion. 
But this decision destroys the object of the report — it violates 
the spirit, as well as the letter of the law; for the Legislature 
evidently intended that these “reasons” should be “set forth” 
for some purpose, and what could have been that purpose, but 
that the county commissioners might be able to see whether 
the opinion of the viewers was a reasonable one? The object 
clearly was, that the report should, as nearly as possible, enable 
the commissioners to put themselves in the place of the view¬ 
ers, and thus judge for themselves whether, under all the cir¬ 
cumstances, the road ought to be established or not. Now, 
how can the commissioners form any judgment of their own 
from the report, when that report gives them no information, 
but only tells them that the road is “practicable,” and that the 
viewers “recommend its adoption?” The law does not au¬ 
thorize the commissioners to call in witnesses, but the board is 
to arrive at its conclusion from the report; and that is why the 
report is to be made. The decision of the Supreme Court 
makes it necessary that the commissioners should either blindly 
accept the opinion of the viewers without question, or reject 
it from mere whim and caprice. The author has no doubt 
that the Supreme Court will overrule that decision, and not 
thus destroy a plain statute. At any rate, it will be better to 
err on the safe side, and the viewers should give the reasons 
for their opinion fully enough to enable the commissioners to 
decide whether those reasons are sufficient. It has been de¬ 
cided in Ohio, too, under a similar law, that unless the report 
states that the road will be of public utility, the commissioners 
have no power to establish it. (35 Ohio State Rep. 445.) 



Y—WHAT THE LAND-OWNER IS TO DO. 


APPLICATION TO VIEWERS. 

If a land-owner lives in the county, or has an agent living in 
it, and no notice has been served upon him or his agent by the 
petitioners, he should, if he desires to contest the road, pay no 
attention whatever to the proceedings; for if he ignores it, the 
road cannot as to him become legally established. (23 Kas. 
Rep. 731, 732.) If he has no desire to contest the road, he 
can present his claim for damages to the viewers, the same as 
if he had received notice; for the notice is for his benefit, and 
he may waive it if he so chooses. (13 Kas. Rep. 265; 25 Kas. 
Rep. 517.) If notice has been properly served upon him, then 
he has no choice, hut must present his claim to the viewers or 
be forever barred from claiming any compensation, if the road 
should he established through his land. How strict the re¬ 
quirement is, may be seen from the following case, decided by 
our Supreme Court: “On. the morning of the day appointed, 
the plaintiff, who lived about five miles from where the view¬ 
ers were to meet, prepared his claim for damages, had his horse 
saddled and at the door to carry him to the place of meeting 
of the viewers in time to have met the viewers and present his 
said claim, and intended so to do; that his mother, a resident 
of his family, was taken suddenly and dangerously ill with a 
congestive chill, which in a few days terminated in death; that 
plaintiff was called upon and stopped from meeting with said 
viewers to be with his mother in her illness, was with her, at 
her bedside attending upon her, and that had it not been for 
his mother’s illness, as stated, he would have presented his 
claim for damages to the said viewers, and said viewers would 
have allowed plaintiff his damages and reported favorably on 
laying out said road; that plaintiff appeared before the de¬ 
fendants (county commissioners), before they had acted on the 
report of the said viewers, and presented his claim for dam¬ 
ages in writing, and made known to them the above facts.” 
The county admitted this all to be exactly true; yet the Su¬ 
preme Court decided that no damages could be allowed, because 
the plaintiff had not presented his claim to the viewers; that 



WHAT THE LAND-OWNER IS TO DO. 


33 


nothing will be an excuse under the statute. “No exception is 
named in the statute; no authority is given to the courts to 
declare one.” (13 Kas. Rep. 146.) 

The application to the viewers for assessment of damages 
must be written or printed, and must describe the premises. 
Unless thus presented, no attention can be paid to it. (24 
Ohio State Rep. 467-471.) 

APPLICATION TO COUNTY BOARD FOR REVISION. 

When the report of the viewers has been made, the land- 
owner has an opportunity of seeking a revision of the amount 
allowed him; and if he considers himself aggrieved by the 
action of the commissioners upon his claim, he may appeal to 
the district court, and obtain a trial before a jury. He may, 
however, lose his right of appeal by negligence; for the county 
commissioners are not bound to notify him when they act upon 
the report finally, and, unless he watches closely, he may not 
discover that it has been acted upon until the time for taking, 
an appeal has gone by. (12 Kas. Rep. 25.) If the viewers 
disallow the claim, no matter how unjust, their decision may 
be, the land-owner cannot enjoin the road on this ground, but 
must appeal, or resort to a petition in error. (31 Ohio State 
Rep. 621.) 

RIGHTS OF, WHEN fioT NOTIFIED. 

If a land-owner, resident in the county, or having a resident 
agent, receives no notice from the petitioners and makes no 
application to the viewers, he may apply to the county board 
at any time within twelve months after the location of the 
road, and have his damages assessed (sec. 5); and of course 
he may appeal from the decision of the board as in other cases. 
The provisions for barring the claims of land-owners have no 
application to persons who neither live in the county them¬ 
selves nor have an agent living in the county. (25 Kas. Rep. 
616, 617.) 

It has been decided in Ohio, that a railroad company is not 
entitled to any damages when a new road is laid out across its 
track, so that cattle-guards, safe-crossings, etc., have to be con¬ 
structed; for the statute requiring these things at road crossings, 
applies to roads afterwards laid out, the same as to those in 
existence when the railroad was constructed. (38 Ohio State 
Rep. 150-152.) 

3 



VI— WHAT THE ROAD OVERSEER IS TO DO. 


It would be needless to tell the readers of this book who a 
road overseer is, or how he is elected, for all know without 
telling, and, besides, the statute is clear enough upon those 
matters without further explanation. So this chapter will deal 
only with the duties of a road overseer. These are: First, To 
open established roads and keep them open; second , to keep 
the roads in his district in repair and in safe condition for 
travel; third , to collect road taxes; fourth , to keep proper ac¬ 
counts and make proper reports of his official doings. 

NOTICE TO LAND-OWNERS TO OPEN ROAD. 

As we have seen, when the county commissioners establish 
a public road, they are to issue an order to the trustee of each 
township through which any part of the road runs, requiring 
him to cause the road to be opened for travel so far as it lies 
within his township. (Sec. 6.) 

When he receives this order, he must, in proper time, direct 
each road overseer in the township, through whose district any 
of the new road runs, to proceed to open the road, or to cause 
it to be opened; and then the overseer must begin his task, 
which is one not perfectly free from trouble and annoyance, nor 
even from danger. His first duty is to notify the owners of 
the lands through which the road runs, if the owners are resi¬ 
dents of the county, or the agents of non-resident owners, who 
have agents resident in the county, to open the road themselves 
through their respective lands. If the owner of any of the 
traversed lands should be a minor, an idiot, or an insane per¬ 
son, then the notice must be given to that person’s guardian, 
if there be a guardian resident in the county. This notice is 
required, however, only in case the land is enclosed or culti¬ 
vated. If it is vacant, unoccupied and unenclosed, so that 
there is no crop, no fence, nor anything of the sort to be re¬ 
moved in order to open the road, then no notice to the owner 
of such land is necessary; for the object of the notice is only 
to enable the owner to get his crops off 1 , or to move his fences 
himself, so as to cause the least injury and inconvenience to 
him. For this reason, if land is in possession of a tenant, who 



WHAT THE ROAD OVERSEER IS TO DO. 


35 


lias a crop on it that he owns, notice ought to he given to the 
tenant as if he were a land-owner too; for he is the person to 
"be benefited by it; but notice must, also, be given to the 
■owner of the land, if he lives in the county, or has an agent 
living in the county. 

If this notice is served after the first of' October and before 
the first of March, it should require the parties notified to open 
the road through their lands within ninety days after being served 
with the notice; but if it is served after the first of March and 
before the first of October, then it must require the parties to 
open the road on or before the first day of the next January. 
(Section 12.) But suppose the notice should be given precisely 
■on the first day of March or of October, neither before nor after, 
shall the notice then require the road to be opened in ninety 
days, or on the first day of the next January? Much may 
depend upon which is right, if notice should be so given; and 
as a mistake might render, the acts of the overseer illegal; and 
as this question has not yet been decided, and may be decided 
■either way upon very plausible grounds; and as there cannot 
usually be any particular necessity for giving notice on those 
very days; it would be prudent for the road overseer not to 
•serve any notices on either the first day of March or the first 
day of October, and thus avoid all question as to legality on 
this ground. 

As this notice is to be “ served ” upon the parties, of course 
it must be written or printed; it cannot be “served” orally. 

If the surveyor has done his duty, and the road has been 
•“ conspicuously marked throughout” (section 6), the land-owner 
need have little difficulty in ascertaining its exact location 
through his lands; as the very object of the surveyor’s marks 
is to enable the land-owner or the road overseer to know the 
route of the road; still, the road overseer’s notice should be 
reasonably specific, and should give such information as to en¬ 
able the land-owner to readily understand what is expected of 
him. For instance, it is not at all impossible that two roads 
may, at different times, have been established through the same 
person’s lands, and neither of them may have been yet opened; 
and, in such a case, how is he to know which road he is to open, 
unless the notice tells him? In this, as in all other cases where 
error is probable, it is better to err on the safer side, and make 
the notice full enough to put the matter beyond doubt. Where 
printed notices are used, this will not involve a great deal of 
labor, but a serious error might cost the overseer much more 
than it would to even sit down arid carefully and painfully 



36 


KANSAS ROAD LA WS. 


write out all the notices in full. But the printed notices pre¬ 
pared in connection with this book are safe and full, and it 
will be found much more convenient to use them than to write 
out the notices and incur the risk of an occasional “ slip of the 
pen.” 

In opening a road, the overseer must follow strictly the 
marks of the surveyor, and cannot exercise any discretion in 
the matter. “After all the care taken to have a road located 
by commissioners, it never was designed that an overseer 
should change its location to suit his notions of public utility.” 
(18 Mo. Rep. 361.) Unless the recorded survey shows the 
course to be otherwise, every line between two marks set up 
by the surveyor must be straight and direct. (18 Mo. Rep. 
360, 361.) And if the survey as recorded does not agree with 
the marks, stakes or stones set up, it has been held that the 
marks, stakes or stones must be heeded rather than the record. 
(8 U. H. Rep. 474-476.) Our statute makes no provision for 
giving the road overseer a copy of the survey for his guidance. 
The law gives him no mefens of information but the marks to 
be set up by the surveyor at the time of the view. But the 
exact location, course and distance of the road'are made mat¬ 
ters of record of which everybody must take notice, and the 
overseer cannot be exempt from this general requirement. It 
seems to the author, however, that a copy of the survey should 
accompany the order to the township trustee, requiring him to 
cause the road to be opened, and should be a part of that order 
to this extent: that inasmuch as the order must necessarily 
describe the road to he opened, else it could not be intelli¬ 
gently obeyed, the description should be the description in the 
survey and report—not merely the description given in the 
petition. This would enable the trustee to give his overseers 
ample instructions as to the route of the road; and the author 
believes the statute contemplates such a description in the 
order to the trustee. 

But when the road has been opened, the overseer’s work has 
but commenced; for he must keep it open and safe to travel. 
To this end he must see that it is kept free from all unlawful 
obstructions. What obstructions are unlawful is shown in 
general terms by the statute. (Sections 23, 24.) But some 
particular matters may he mentioned with advantage here. A 
“willful obstruction” does not necessarily mean an obstacle to 
travel put in the road for the express purpose of obstructing, 
although, of course, that would he a willful obstruction; but a 
party who does any act which has the effect of obstructing the 



WHAT THE ROAD OVERSEER IS TO DO. 


37 


road, and after knowing that it has that effect still persists in 
what he is doing, and does nothing to avoid such an effect, is 
guilty of a willful obstruction. Thus, where a man built a 
dam on his own land, and it had the effect of constantly back¬ 
ing water over a road so as to keep it submerged and unfit for 
travel, and having been notified by the overseer still did noth¬ 
ing to remove the obstruction, the Supreme Court decided that 
he was guilty of a “willful obstruction.” (32 Kan. Rep. 450- 
455; see, also, 8 Kas. Rep. 255-259.) So, an owner of adja¬ 
cent lands consented that some parties might fell a tree be¬ 
longing to him, but on condition that it should not fall into 
the highway, or that they would remove it if it did; but the 
tree did fall into the road, and remained there, and he knew it. 
It was held that he was guilty of obstructing the road. (37 
Ohio State Rep. 1-10.) These examples show, in general, 
what will constitute a willful obstruction: (1) Something done 
by one, or under his direction or permission; (2) Knowledge 
on his part that the effect of what is thus done is to obstruct 
the road; (3) Not seeking in good faith to do anything to re¬ 
move or prevent the obstruction. 

Our Supreme Court has decided that when a railroad has 
interfered with a highway, the company is bound only to 
restore the road to its former condition, and is not thereafter 
bound to keep it in good condition; that the company’s duty 
ceases with the act of restoration. (27 Kas. Rep. 685-692.) 
We have already seen that the land-owner has the right to 
■still use the premises over which the road runs in any manner 
which does not interfere with public travel; that he may dig 
coal, mine minerals, quarry rock, or plant out trees. Hence, 
he cannot be charged with obstructing the road, unless what 
he does is incompatible with the rights of the public; and he 
has a right to have a jury decide this question. (22 Kas. Rep. 
285-294, 295.) 

.A road overseer is a ministerial otficer, and his duties and 
powers are confined to his own district. When he leaves his 
district boundaries, he leaves his office behind him, and out¬ 
ride his district has no power as a road overseer. .(13 Ohio 
State Rep. 406.) 

It has been decided in Ohio that to resist a road overseer in 
the lawful discharge of his duty, is “resisting an officer,” 
within the statute making such resistance a criminal offense. 
(26 Ohio State Rep. 196.) 

It must not be forgotten that there was law in force long 
before the road statutes were enacted—the general rules of 




38 


KANSAS ROAD LAWS. 


justice known as “the common law”—and, hence, the remedies 
pointed out by the statute are not always the only remedies 
the public can have for the protection of the public roads. 
Thus, if a railroad company, in constructing its track, should 
tear up a public highway, and persistently refuse to put it in 
proper condition again, it has been held that the attorney gen¬ 
eral (or the county attorney here) might bring a suit and obtain 
an injunction forbidding the company to use the crossing until 
it should do its duty by restoring the road to its proper condi¬ 
tion. (36 Ohio State Rep. 434.) 

The duties of the overseer as to working the roads, giving 
receipts, keeping and rendering accounts, etc., are all plainly 
set forth in the statute, and need no explanation here. Forms 
for receipts, or certificates for materials, and of overseer’s 
accounts, reports, etc., will be found in Part III of this 
manual. 



VII —HO W TO CONTEST A ROAD. 


Any one through whose lands a proposed road will run, 
may contest its establishment, unless he does some act which 
will preclude him from that right. But nothing he can do 
will, perhaps, waive his right to object, unless the county com¬ 
missioners had jurisdiction to carry on the proceedings; it is 
only where the county board had, by following the statute 
strictly, become entitled to act, that any such question as that 
of waiver of the right to contest can arise. If the board has 
acquired jurisdiction, mere irregularities or mistakes may be 
waived by the land-owner’s silence or conduct. The waiver 
is not a personal matter, but relates only to the land; so that 
if a land-owner should waive notice of the view, this would 
preclude him from objecting because of the want of notice so 
far as concerned the land he then owned; but if he should 
afterwards purchase other lands over which the road runs, he 
could object that the owner of that land was not notified, and 
make a contest as fully as the original owner could have made 
it. (18 Kas. Rep. 386-396.) Before going further, however, 
let it be understood that we are now speaking of a contest 
against the road as illegally established—not a contest by a 
land-owner over the damages; the latter subject is fully dis¬ 
cussed under the head, “What the Land-Owner is to do.” 
With this understood, let us here see — first, who can contest 
the road, and what waives the right; second, upon what 
grounds it may be contested; and third, by what proceeding 
the contest may be made. 

WHO CAN CONTEST. 

A taxpayer cannot bring any proceeding as a taxpayer to 
contest the location of a road. So far as the taxpayer’s rights 
are concerned, they are represented by the State alone—they 
are public rights—and they can be asserted only by the county 
attorney or by the attorney general siting in the name of the 
State. The taxpayers have no other means of redress, except 
that of course they may, if they can, persuade the county 
board not to lay out the road. The only persons who can 
personally contest the road are those whose private rights are 



40 


KANSAS ROAD LA WS. 


affected by it; and land-owners, whose lands are affected by 
the proposed road, are, perhaps, the only persons who answer 
this description. 

Of course, that the land-owner claims damages before the 
viewers cannot be a waiver of his right to contest; for that 
would be requiring him to take the chance of losing all com¬ 
pensation if his contest should not succeed. Besides, the law 
gives him no opportunity to contest on legal grounds until the 
viewers have made their report. But, if he presents to the 
viewers his written application for damages, he does waive his 
right to object that notice of the view was not served upon 
him. (25 Kas. Rep. 517, 518.) An appeal from the assessment 
of damages by the county board, waives all objections to the 
validity of the proceedings, and nothing remains open to con¬ 
test but the amount of damages. An appeal may, however, 
be' taken as to the whole proceedings, and this will save all 
questions for review in the district court. 

GROUNDS OF CONTEST. 

The grounds of contest must be based upon either the want 
of power in the county commissioners to act in the case at all; 
or the irregularity of their proceedings; or the illegality or 
injustice of their decision. The power of the commissioners 
to act at all is called jurisdiction; the mode in which they are 
to exercise that power is the 'procedure; their final determina¬ 
tion is their decision; and the whole subject of the grounds of 
contest, will be gone over under the three heads— jurisdiction , 
'procedure and decision. 

Jurisdiction. —The law defining the powers of county commis¬ 
sioners authorizes them “ at any meeting,” among other things, 
“to lay out, alter or discontinue any road running through 
one or more townships.” (Sub-division 8 of section 16, chap¬ 
ter 25, General Statutes; see Compiled Laws of 1881, p. 275.) 
Nevertheless they can exercise this power in any particular in¬ 
stance only when the matter is properly brought before them 
as provided by statute; they cannot act upon their own motion, 
but must wait, powerless, until the proper persons petition 
them in the manner prescribed bylaw. (18 Kas. Rep. 386- 
396.) Until a petition is presented them, no jurisdiction exists. 
Again, this petition can be presented only by householders of 
the county; a petition signed bj- any other class of persons is 
the same as no petition at all, for no others have a right to 
present a petition. And twelve householders of the county 
must sign it; eleven householders of the county and one non- 



HOW TO CONTEST A ROAD. 


4L 


resident, or one not a householder, will not do, but the peti¬ 
tion will still be the same as if no householder had signed it. 
Hence, it is good ground of objection to the jurisdition of the 
commissioners that any one of the necessary twelve signers 
was not a householder , of not a resident of the county. (12 Ohio 
State Rep. 635, 636.) 

A non-resident land-owner can no more he regarded as a 
legal petitioner than if he owned no land; the petitioners must 
be householders of the county. (35 Ohio State Rep. 454.) If 
twelve such legal petitioners have signed the petition, however, 
and the proper notice has been published by the clerk, the 
death of one of the petitioners afterwards will not affect the 
power of the commissioners to act, for their jurisdiction will 
have become complete. (35 Ohio State Rep. 444.) It is not 
necessary, either, that the twelve petitioners shall all sign the 
same petition; for duplicates may be circulated for conveni¬ 
ence, and they will all be treated as one petition; so that if 
the duplicates contain the signatures of twelve householders 
when taken together, that will be sufficient. (31 Ohio State 
Rep. 386; 32 Ohio State Rep. 544; 36 Ohio State Rep. 288.) 

But even though properly signed, the petition may be fatally 
defective for want of an intelligent description of the proposed 
road; for unless the description would enable a practical sur¬ 
veyor to locate it, the petition confers no jurisdiction upon the 
commissioners. (59 Ind. Rep. 54, 55; 73 Ind. Rep. 454-456.) 
Supposing, however, that the petition is sufficient, there is yet 
another indispensable step to be taken-—the notice to be given 
by the county clerk. If this notice has not been actually given, 
precisely as required by law, the commissioners have no power 
whatever to proceed. (32 Kas. Rep. 507, 557.) 

But the petition and the notice by the county clerk give jur¬ 
isdiction only to consider the propriety of laying out the road; 
still another step is required before it can be laid.out over any 
land-owner’s premises. Before any resident’s land can be 
taken, he must have six days’ notice of the meeting of the 
viewers, or he must waive that notice. If any man living in the 
county or having an agent living in the county has neither been 
served with notice nor waived it, then no matter how valid the 
proceedings may be as to every other person, an order estab¬ 
lishing the road through his land will be absolutely void. Hot 
only so, but the order will be void if notice has been served on 
the land-owner, unless a copy of the notice, with an affidavit 
proving its service, is filed with the county clerk before the or¬ 
der establishing the road is made. (23 Kas. Rep. 731, 732.) Af- 



42 


KANSAS ROAD LA WS. 


ter the Supreme Court had decided otherwise as to the law as 
it then stood (12 Kas. Rep. 531), the Legislature added to section 
4 these words: “Copies of said notice to owners of lands, 
with affidavits of service attached, shall he filed in the county 
clerk’s offic q before said road shall be established;” and the Su¬ 
preme Court afterwards decided that these words had the effect 
of denying to the commissioners the power to order the road 
to be recorded unless the copies and affidavits had been filed. 
(23 Kas. Rep. 731, 732). One more thing is necessary to the 
power to establish the road—there must be a favorable report 
by the viewers, and the report must distinctly show or state 
that the road will be of public utility. Unless the report is 
favorable, and unless it shows the road will he of public util¬ 
ity, the commissioners are powerless to establish it. (35 Ohio 
State Rep. 445, 446.) 

Procedure. —Although the power exists, and everything nec¬ 
essary to jurisdiction has been done, the order establishing the 
road may still he voidable because of irregularity in the proceed¬ 
ings of the commissioner's, the clerk, the surveyor, the peti¬ 
tioners, or the viewers. The proceedings are laid down in the 
statute, and that statute must he substantially complied with. 
Nothing can be done but what the statute prescribes, nor in 
any other way than that which it lays down. (24 Ohio State Rep. 
66.) To begin with, the record of the proceedings must show 
a finding —a decision based upon some evidence —that the petition¬ 
ers are householders, or the whole proceeding will be void. (18 
Kas. Rep. 132, 398.) If one of the viewers was not a house¬ 
holder, or was not disinterested—as, if he were one of the peti¬ 
tioners (13 Rhode Island Rep. 129); or if the viewers, or one 
of them, improperly behaved, in such a way as would he im¬ 
proper in a juror (49 Connecticut Rep. 229); or if the peti¬ 
tioners have bribed or “bought off” an opponent of the road. (35 
Ohio State Rep. 455); or if only two viewers acted, the other 
not having been notified of his appointment (7 Ohio State Rep. 
16; 8 Kas. Rep. 258), all these, and many other objections may 
be urged against the regularity of the proceedings; hut the 
party contesting the road should appear before the commission¬ 
ers when the report of the viewers is considered, and by affi¬ 
davit or otherwise make the record, or the papers on file, show 
these outside facts, in order that they may be brought before 
the district court, if a petition in error should become necessary. 

The Decision. — Objections to the final order establishing the 
road will he, either that the previous proceedings have been ir¬ 
regular, or that the hoard has no jurisdiction, or that the road 



HOW TO CONTEST A ROAD. 


4a 


will not be of public utility, or will work unneeesarry incon¬ 
venience or hardship to some person affected by it. The legal 
objections have already been considered; and the other objec¬ 
tions have been discussed in the chapter on “ What the View¬ 
ers are to do,” so that nothing further need be said here as to- 
the grounds of contest. * 

THE MODE OE CONTEST. 

Before the final order of the hoard, there can be no contest 
in court, but the conflict must be before the county commis¬ 
sioners (32 Kas. Rep. 507-509); for up to that time the com¬ 
missioners have not accomplished anything. After the final 
order has been made, the party desiring to contest may take a 
general appeal, under section 30 of chapter 25 of the General 
Statutes, as a person “aggrieved” by the decision (18 Kas. 
Rep. 575); or he may obtain a complete transcript from the- 
county clerk of the record and papers, and file a petition in 
error (24 Kas. Rep. 512, 513; 18 Kas. Rep. 129,130); or, he 
may resist the road overseer when he seeks to open the road,, 
and thus have himself arrested for obstructing a highway (23 
Kas. Rep. 731, 734; 12 Ohio State Rep. 635, 636); or, he may 
sue the road overseer for trespassing when he has entered upon 
the land to open the road; or, which is the more usual course,, 
he may bring a suit to enjoin the township trustee and road 
overseer from attempting to open the road through his lands.. 
(32 Kas. Rep. 555; 28 Kas. Rep. 625; 26 Kas. Rep. 345; 18 
Kas. Rep. 386-396.) 

If a petition in error or an injunction suit be brought, the- 
“principal petitioner” must be made a defendant to the peti¬ 
tion or suit, and, perhaps, the county board also; but the 
“principal petitioner” must be made a party, or the court will 
refuse to act. (24 Kas. Rep. 511; 30 Kas. Rep. 583.) Fuller 
discussion of these matters would lead into a wide field, and 
would not be proper in such a manual as this; besides, no 
prudent man will attempt to conduct his own suit, unless he- 
be a lawyer, and if a road is to be contested seriously, coun¬ 
sel should be employed at an early stage of the proceedings- 
for that express purpose. 



YIII—ABANDONMENT OF ROADS. 


It has been held that “unopened,” in the statute declaring 
roads abandoned in certain cases (section 74), means simply 
roads authorized, hut which have never been opened (30 Kas. 
Hep. 559; 19 Ohio Rep. 367); that a mere temporary abandon¬ 
ment of part of a road once opened, because of some obstruc¬ 
tion, will not work a loss of the road under this statute; but 
there must be an evident intention by the public to wholly 
abandon the use of the road (30 Kas. Rep. 559; 28 Kas Rep. 
715, 721, 722); and that whenever all is done which the law 
and necessity require to be done in order to render the road 
open for public use, the road is not then an “unopened” road, 
within the meaning of the statute; and that when the road 
has been thus once legally opened, abandonment for ten years 
afterwards will have no effect. (30 Kas. Rep. 560, 561.) 



PART II. 


% 

Collated Road Statutes. 









COLLATED ROAD STATUTES. 


[N. B.—The main statute is chapter 108, Laws of 1874, The sections of 
that statute are here indicated by double section numbers, the numbers 
written in brackets being the original numbers of the sections as they 
stand in the statute. It was necessary to break up the original arrange¬ 
ment of the law, in order to group together the various kindred provisions. 
Every section with a number in brackets belongs to the road law of 1874.] 

PETITION AND BOND. 

§1 [ 1 ]. That applications for laying out roads, or for view¬ 
ing, reviewing, altering, or vacating any road, shall he by 
petition to the board of county commissioners, signed by 
at least twelve householders of the county, residing in the 
vicinity where said road is to be laid out, viewed, reviewed, 
altered, or vacated; and one or more of the signers of any pe¬ 
tition presented as aforesaid shall enter into a bond with suffi¬ 
cient Security, payable to the State of Kansas, for the use of 
the county, to be approved by the county commissioners, con¬ 
ditioned that the persons signing such bond shall pay into the 
treasury of the county the amount of all costs and expenses 
accruing on said location, view, review, alteration, or vacation; 
in case the proceedings had in pursuance of said petition shall 
not be finally confirmed and established, and on neglect or re¬ 
fusal of the persons so bound, after a liability shall have ac¬ 
crued, the county clerk of the county shall collect, or cause to 
be collected, such costs and expenses, and pay the same into 
the county treasury. 

§ 2 [2]. All petitions for laying out or altering roads shall 
specify the place of beginning, the intermediate points, if any, 
and the place of termination of such road. 

APPOINTMENT OF VIEWERS AND GIVING NOTICE. 

§ 3 [3]. Upon presentation of any petition for a road, or 
for the alteration or vacation of any road, to the county com¬ 
missioners, at any regular session of their board, it shall be 
the duty of said commissioners, if they find the petition to be 
a legal one, and that the proper bond has been filed, to appoint 
three disinterested householders of the county as viewers, and 



48 


KANSAS ROAD LAWS. 


the county clerk shall give notice by advertisement set up in 
the county clerk’s office, and in every municipal township 
through which any part of said road is designed to be laid 
out, altered, or vacated, for at least twenty days, and by pub¬ 
lication for two consecutive weeks in a newspaper, if there be 
one published in the county, setting forth that such petition 
has been presented, giving the substance thereof, and that 
viewers will, on such day as the commissioners have desig¬ 
nated, not more than twenty days after the expiration of the 
notice herein required, proceed to view said road, and give to 
all parties a hearing. They shall also cause a record of such 
notice to be entered on their journal by the county clerk. 
They shall issue an order directing the county surveyor to 
meet with them at the time and place named in said notice, 
to survey such road. In case of failure to meet on the day 
designated, they may meet on the following day, without fur¬ 
ther notice; and in case of failure to meet within the time 
herein specified, new notice shall be given as hereinbefore 
provided; that in all applications for the location, change and 
relocation of any road to be located upon or along any section 
line, and the^petition shall so state, and shall specify the sec¬ 
tion line's to be followed, the place of beginning and the place 
of ending, the survey may be dispensed with; and in case 
the owners of the lands taken agree in writing to the proposed 
location, relocation, or change, and the commissioners are 
satisfied that the location, relocation or change prayed for is 
practicable, and can be made without unreasonable expense, 
they may dispense with the viewing of such location, reloca¬ 
tion, or change of road, and shall order the same to be opened, 
and shall also direct the county clerk to note such location, 
relocation or change of roads upon the road records of his 
office. 

§ 4 [4]. It shall be the duty of at least one of the peti¬ 
tioners to cause six days’ notice to be given in writing to 
the owner or owners, or their agents, if residing in the county, 
or if such owner be a minor, idiot or insane person, then to 
the guardian of said person, if a resident of the county, 
through whose land such road is proposed to be laid out and 
established, and also six days’ notice to the county surveyor 
of the time and place of meeting, as specified in the notice of 
the commissioners. Copies of said notice to owners of lands, 
with affidavits of service attached, shall be filed in the county 
clerk’s office before said road shall be established. 



COLLATED LOAD STATUTES. 


49 


VIEW, SURVEY, DAMAGES, REPORTS, FINAL ACTION. 

§ 5 [5]. It shall be the duty of the viewers, or a majority 
of them, and the county surveyor, to meet at the* time and 
place specified in the notice aforesaid, or on the following day 
thereafter; and they may, if they deem it necessary, take to 
their assistance two suitable persons as chain carriers, and one 
as marker, and then proceed to view, survey, lay out, alter or 
vacate the road as prayed for in said petition, or as nearly so 
as a good road can be made at a reasonable expense, taking 
into consideration the utility, convenience and inconvenience 
und expense which will result to individuals as well as to the 
public, if such road, or any part thereof, shall be established 
and opened or altered. Said viewers shall also assess and 
determine the amount of damages sustained by any person or 
persons through whose premises the said road is proposed to 
be established. Such viewers shall not assess or award dam- 
.ages or compensation to any person or persons in consequence 
of the opening of said road, unless the owner or owners, or 
their agents or guardians, having been duly notified as pro¬ 
vided in section 4, of the applications and proceedings by 7 
which their property 7 is sought to he appropriated or damaged, 
.shall have filed a written application with said viewers, giving 
a description of the premises on which damages or compensa¬ 
tion are claimed at the time of said view and hearing, as here¬ 
inbefore provided for: Provided , That in case any person has 
not received the notice of the view of said road, as provided 
for in section 4, he may at any time within twelve months 
after the location of said road file an application for damages 
with the county commissioners, who shall determine the 
amount of damages sustained by such claimant; and all appli¬ 
cations for damages shall be forever barred unless they are 
presented as provided for in this act. 

§ 6 [6], The surveyor shall survey the said road under 
the direction of the viewers, and cause the same to be con¬ 
spicuously marked throughout, noting the courses and dis¬ 
tances. He shall also make out and deliver to the county clerk, 
without delay, a correct and certified return of the survey of 
the said'road, and a plat of the same. And the viewers shall 
make and sign a report in writing, stating their opinion in 
favor of or against the establishment, alteration or vacation of 
said road, or any part therepf, and set forth the reason of the 
same; which report shall be delivered to the county clerk by 7 
one of the viewers on or before the first day of the session of 
the county commissioners then next ensuing, and it shall be 

4 



50 


KANSAS ROAD LAWS. 


the duty of the commissioners, on receiving the report afore¬ 
said, to cause the same to be read before their meeting; and if 
said report is favorable, and no legal objections appear against 
said report, and they are satisfied that such road will be of 
public utility, they shall order said report, survey and plat to be 
recorded, and from thenceforth said road shall be considered a. 
public highway, and the commissioners shall issue their order 
to the trustees of the respective townships in which such road 
is located, directing them to cause the same to be opened for 
the public travel; but if the report of the viewers be against 
such proposed road or alteration, and in the opinion of the 
commissioners said report is a just one, and that such road, as 
applied for, is unnecessary, then no further proceedings shall 
be had thereon; and the obligor or obligors in the bond secur¬ 
ing costs shall be liable for the full amount of all costs accrued 
by reason of the view of said road. 

§ 7 [7]. It shall be the duty of the viewers, at the same 
time that they make their report of the view, to make also a 
separate report to the county commissioners, in writing, stating 
the amount of damage, if any, by them assessed, and to whom. 
They shall also be required to submit with such report the 
written application on which assessments have been made. 
All allowance for damages, as provided in this act, shall be 
subject to revision by the said board of county commissioners, 
and any person feelings himself aggrieved by the award of 
damages made by the board of county commissioners may 
appeal from the decision of the said board of county commis¬ 
sioners to the district court, upon the same terms, in the same 
manner and with like effect as in appeals from judgments of 
justices of the peace in civil cases. 

REVIEW OF ESTABLISHED ROAD. 

§8 [8]. When the place of beginning or true course of 
any road shall be uncertain by reason of the removal of any 
monument or marked tree by which the road was originally 
designated, or from any other cause, the county commissioners 
of the proper county may appoint three disinterested house¬ 
holders of the county to review and straighten said road, if 
they deem it necessary; and the county surveyor shall survey 
the same, and said reviewers and surveyor shall view and 
survey said road, and the same correctly mark as in the case 
of new roads, and shall make a correct return of said survey 
and a plat of said road to the commissioners, who shall cause 
the same to be recorded as in other cases, and from thence- 




COLLATED ROAD STATUTES. 


51 


forth said road, surveyed as aforesaid, shall be considered a 
public highway. 

ROADS ON COUNTY OR CITY LINES. 

§9 [9], When it shall become necessary to establish a road 
on a county line, the inhabitants along such line may peti¬ 
tion the board of commissioners of their respective counties 
for a view of said road in the manner hereinbefore provided; 
and it shall be the duty of the board of commissioners for each 
of the counties interested, to appoint three disinterested house¬ 
holders as viewers, who, or a majority of them, shall meet at 
the time and place named in the order of the county interested 
first, in alphabetical order, together with the surveyor of such 
county; and the viewers and surveyor aforesaid shall assess 
all damages, and shall in all respects be governed by the pre¬ 
ceding provisions of this act; and the viewers and surveyor 
aforesaid shall make their report in writing for or against 
such road, and the commissioners upon receiving such report 
shall be governed by this act; and when it shall become nec¬ 
essary to establish a road on the line of any city, the board of 
commissioners of the county and the corporate authorities of 
such city may each appoint three householders as above, who 
shall proceed, as directed herein, to lay off a road of the width 
of sixty feet along such line, one-half on the side of the city, 
and the other half on the side of the county; or the said view¬ 
ers may act separately in laying off so much of said road as 
lies within the corporate limits of said city, or county outside 
of said city. 

§10 [10]. If on receiving such report, and there being no 
legal objection thereto, and the commissioners of all the 
counties interested, or a majority of them, shall be of the 
opinion that said road, if opened, would be of public utility, 
they shall order the same to be opened in the manner provided 
in this act. 


COMPENSATION OP VIEWERS, ETC. 

§11 [11]. All persons required to render services under 
this act shall receive compensation for each day they shall 
necessarily he employed, as follows, to wit: Viewers, two dol¬ 
lars each; chain carriers and markers, one dollar and fifty 
cents each; to be charged as cost and expense, and paid out 
of the county treasury on order of the commissioners. 



52 


KANSAS ROAD LAWS. 


OBSTRUCTION OP HIGHWAYS. 

Natural or Accidental. 

§ 12 . It shall be the duty of the road overseers of the several 
counties of this State to remove, or cause to he removed, at 
least once each year, between the fifteenth day of June and 
the fifteenth day of July, in the public highways, all cockle- 
burs, Rocky Mountain sand-burs, burdocks, sunflower, Canada 
thistles, and such other obnoxious weeds as may be injurious 
to the best interest of the farming community. (Laws 1883, 
ch. 150, sec. 1.) 

§ 13 . The road overseers in the several counties in this State 
are hereby directed to carry section one of this act into effect, 
under the provisions of chapter one hundred and eight (108) 
of the Session Laws of eighteen hundred and seventy-four. 
(Laws 1883, chap. 150, sec. 3.) 

§14 [27]. If at any time any highway shall be obstructed or 
become impassable, or any bridge shall be impaired so as to 
be unsafe, it shall be the duty of the overseer of the district 
in which such obstruction, impassable road or impaired bridge 
may be situated, to cause such obstruction to be removed, or 
such road or bridge to be repaired forthwith, for which purpose 
he shall order out such number of persons liable for road tax 
in his district as will be necessary to make said repairs; and 
every person so ordered out, who shall refuse or neglect to 
attend with the proper implements, or shall spend the time in 
idleness after reporting for labor, shall be liable to a fine of 
five dollars. 

§ 15 . The township trustee may remove obstructions from the 
highways in cases where the road overseers shall refuse or fail 
to do so; and the trustee shall, in such cases, have all the power 
of road overseers in calling out the inhabitants to perform the 
work necessary to remove such obstruction. (Laws 1871, ch. 
153.) 

Permissible. 

§16 [13]. The county commissioners are hereby authorized, 
whenever in their judgment the inconvenience to the public 
will not be too great, to allow any person through whose land 
a road is laid out to maintain convenient gates for a time suf¬ 
ficient to grow a hedge, not to exceed five years. 

• § 17 . It shall be lawful for any owner, agent or lessee of any 
land not within the limits of any incorporated city, who may 
wish to grow a hedge or hedges on any land by or through 
which any public highway is now or may hereafter be located, 



COLLATED ROAD STATUTES. 


53 


to set his or t-heir fence, as the case may be, out into any pub¬ 
lic highway or street any distance not exceeding eight feet from 
the side line of such public highway or street, and may con¬ 
tinue to maintain such fence in such public higlrway or street 
for any time not exceeding five years from the time of setting 
such fence in such public highway or street: Provided , Such 
fence shall not remain in such highway or street more than 
two years, unless such person shall plant a hedge along the 
the line of such public highway. (Gen. Stat. 1868, p. 494, sec. 
1; Comp. Laws 1881, p. 453, sec. 35.) 

Slack Water Navigation Companies. 

§ 18 . That in case any public highway shall be destroyed or 
obstructed by the flowage of any stream in consequence of the 
erection of any dam or dams, or otherwise, such corporation 
shall bridge such stream at the place or places where such 
highways have been destroyed, and maintain the same; and in 
case of partial destruction of such highway, the said highway 
shall be repaired, and maintained as a good, passable higlrway 
by such corporation. (Laws 1875, ch. 75, proviso to sec. 6.) 

§19. At any or all points where any railroad crosses any 
public highway, the railroad company owning said railroad 
shall, without any unnecessary delay, construct good and suffi¬ 
cient and safe crossings. (Laws 1869, ch. 81, sec. 2.) 

§ 20 . Every railway corporation shall * * * have 

power: * * * Fourth , To construct its road across, 

along or upon any * ' * * highway * * * which 

the route of its road shall intersect or touch; but the company 
shall restore the * * * highway * * * thus 

intersected or touched to its former state, or to such state as 
to have not necessarily impaired its usefulness. (General Stat¬ 
utes 1868, chap. 23, sec. 47, subdivision 4; Comp. Laws 1881, 
p. 224,) 

§ 21 . Corporations created for the purpose of constructing 
and maintaining magnetic telegraph lines are authorized to 
set their poles, piers, abutments, wires, and other fixtures, 
along, upon, and across any of the public roads, streets, and 
waters of this State, in such manner as not to incommode the 
public in the use of such roads, streets and waters. (Gen. Stat. 
1868, p. 210.) 

Telephone Companies. 

§ 22 . All such corporations shall have all the rights and 
powers conferred, and be subject to all the liabilities and duties 
imposed by the general laws of this State upon telegraph cor¬ 
porations. (Laws 1885, ch. 104, sec. 1.) 



54 


KANSAS ROAD LAWS. 


Unlawful. 

§23 [17]. If any person shall willfully demolish, throw 
down, alter or deface any mile-stone or guide-board on or at 
the forks of any roads, or shall willfully obstruct any such 
road by any means or in any manner whatever, every person 
so offending shall, on conviction, be adjudged guilty of a mis¬ 
demeanor, and be punished by imprisonment in the county 
jail not exceeding three months, or by fine of not less than 
twenty nor more than one hundred dollars, or by both such 
fine and imprisonment, which fine shall be paid by the officer 
receiving the same into the county treasury for school pur¬ 
poses. And every person obstructing any such road as afore¬ 
said shall also be liable in a civil action for all damages sustained 
by any person who has in any manner whatever been damaged 
by reason of such obstruction. 

§24. It shall be unlawful for any person or persons to 
hereafter plow up the public highways for the purpose of scour¬ 
ing plows, or for any other purpose, except it be under the 
direction of the overseer of public highways; and any person 
or persons violating the provisions of this section shall be guilty 
of a misdemeanor, and upon conviction before any court having 
competent jurisdiction shall be fined for each and every offense 
under this act, in a sum not exceeding ten dollors nor less than 
three dollars, with cost of suit. (Laws 1883, ch. 150, sec. 2.) 

PROVISIONS FOR PUBLIC SAFETY AND CONVENIENCE. 

§25 [14]. Each overseer, within his district, shall erect and 
keep up at the expense of the township, posts and guide- 
boards at the forks of every State and county road, containing 
an inscription in legible letters, directing the way and naming 
the distance to such cities as are situated on said road; and 
any road overseer failing to do so in a reasonable time, not to 
exceed six months, shall, upon conviction thereof before any 
justice of the peace of the proper county, be fined in any sum 
not exceeding five dollars, with co-ts of suit; and such fine, 
when collected, shall be paid into the county treasury for 
school purposes. 

§ 26 [31]. It shall be the duty of the township trustees of the 
several townships in each county of this state, to cause to be 
put up and kept in good repair at each end of each and every 
bridge erected by the county upon any highway in their re¬ 
spective townships, of a span of not less than twenty-five feet, 
a notice, which shall be printed in conspicuous letters, with the 



COLLATED ROAD STATUTES. 


55 


following words: “Five dollars fine for riding or driving over 
this bridge faster than a walk.” 

§ 27 [32]. It shall be unlawful for any person or persons to 
ride or drive any horse, mule, ass or ox over any such bridge 
in this State faster than a walk, or drive more than fifty head 
of cattle on such bridge at one time; and any person who shall 
•so unlawfully ride or drive such horse, mule, ass or ox over 
•such bridge, or drive over the same more than fifty head of 
-cattle at any one time, upon conviction thereof shall pay a fine 
•of five dollars, and costs of suit. 

§ 28 . Each road overseer, within his district, shall erect and 
keep up, at the expense of the township, posts or boards at the 
fords of every river or creek that in high water becomes im¬ 
passable; which posts shall be set at or near low-water mark, 
on which shall be inscribed in legible letters, or plain figures, 
the depth of water at lo'sy water, together with a scale of feet 
.showing the scale of feet above low-water mark to the height 
which said stream is known to have risen. (Laws 1869, ch. 83, 
;sec. 1.) 

WIDTH OF ROADS. 

§29 [28]. The width of all county roads shall be determined 
by the viewers at the time of establishing the same, and shall 
not be more than eighty nor less than forty feet: Provided , 
That in cases where a growing hedge, or other permanent im¬ 
provement, the removal of which would cause too great an 
expense, the viewers may determine the width of the road at 
not less than thirty feet; and in cases where a growing hedge 
or permanent improvement on or near one side of the pro¬ 
posed road precludes the road being laid equally on both 
•sides of the line, the viewers may establish all or any part of 
•said road on the side of the section line not encumbered by 
improvement. 

PRIVATE ROADS. 

§30 [29]. That whenever the premises of any person in this 
State shall be so completely surrounded by adjoining lands, 
-the property of other persons, as to be without access to any 
public highway, then such person may petition the board of 
county commissioners of the county in which such premises 
lie for a road through some portion of the adjoining lands; 
,and the board shall, on the presentation of such petition, pro- 
eeed in accordance with the provisions of the foregoing sec¬ 
tions to lay out such road, make returns of plats, and allow 
damages, if any should be held or allowed, provided said road 




56 


KANSAS ROAD LA WS. 


shall not exceed twenty-live feet in width, and be laid out upon 
the section or half-section lines when practicable. 

§ 31 . That when any landholder, who has no road or high¬ 
way, desires the benefit of a road or highway, such person 
may petition the county commissioners of the county in which, 
such person resides to open a private lane or road to a public 
highway, when it shall be the duty of said commissioners to 
appoint three disinterested viewers to view and open a lane or 
road by the nearest and most practicable route to an established 
highway: Provided , That said lane or road shall follow or run 
parallel with some section or subdivision line; said road not 
to exceed two rods in width. (Laws 1874, ch. 112, sec. 1.) 

§ 32 . Said viewers shall assess all damages, w T hen damages^ 
are claimed, and the road shall be declared opened when the 
damages, if any, are paid. (Laws 1874, ch. 112, sec. 2.) 

§ 33 . That no portion of the expense of viewing and locat¬ 
ing roads under this act shall be chargeable to the county or 
State, but shall be paid by the person for whose benefit the 
road is located. (Laws 1874, ch. 112, sec. 3.) 

AVENUES, STREETS AND ALLEYS. 

§34 [15]. All avenues, streets and alleys in cities, which 
are or may hereafter be laid out agreeably to law, shall be and 
the same are hereby declared public highways: Provided y 
That the municipal authorities of any incorporated city may 
make, ordain and enforce such ordinances concerning the 
sidewalks of the streets of such city as shall be deemed neces¬ 
sary to prevent such sidewalks from being used for the passage 
of horses, wagons and carriages, or hitching horses or other 
animals thereon. 

GENERAL DUTIES AND POWERS AND COMPENSATION OE ROAD 
OVERSEERS. 

§35 [12]. It shall be the duty of each and every road over¬ 
seer to open or cause to be opened all county and State roads 
and highways which have been or may hereafter be laid out 
or established through any part of the district assigned to such 
overseer, first giving notice to the owner or owners, or their 
agent or agents, if residing in the county, or if such owner be 
a minor, idiot or insane person, then to the guardian of such 
person, if a resident of the county, through whose inclosed or 
cultivated lands such road is laid out or established, notifying 
such owners aforesaid to open said road through their lands 
within ninety days after service of such notice; and if the per- 



COLLATED ROAD STATUTES. 


57 


son or persons so notified do not open such road within the 
time named in such notice, it shall be lawful for such overseer 
or any person under his direction to enter upon said lands and 
open said road : Provided , If such notice he given between the 
first day of March and the first day of October, the notice 
shall designate the first day of January next as the time of 
opening such road; and the overseer shall keep the same in 
repair, and remove or cause to be removed all obstructions 
that may from time to time be found thereon, for which pur¬ 
pose the overseer is hereby authorized to enter upon any un¬ 
cultivated land unincumbered by a crop, near or adjoining the 
public road, to dig and carry away any gravel, sand or stone, 
and to purchase any timber which may be necessary to im¬ 
prove or repair said road, and to enter upon any land adjoining 
or lying near to said road to make such drains or ditches 
through the same as he may deem necessary for the benefit 
of the roads, doing as, little damage to said lands as the nature 
of the case and the public good will permit; and the drains 
and ditches thus made shall be kept open by the overseer, if 
necessary, and shall not be obstructed by the owner or occu¬ 
pants of said land, or by any other person, under the penalty 
of being fined not exceeding ten dollars for each offense, be¬ 
fore any justice of the peace of the county. Any overseer 
who shall take away gravel or stone for the purpose of repair¬ 
ing any road, or for building or repairing any bridge, shall, 
upon the demand of the owner, give a certificate, showing the 
quantity and value thereof, and the time when taken; and 
upon the presentation of such certificate to the trustee of the 
township in which such road or bridge is situated,.the owner 
of such certificate shall he allowed by the township trustee 
such compensation as may be just and equitable. 

§ 36 . That where a road is located on a county or civil 
township line, and by reason of any impediment, either natu¬ 
ral or otherwise, any portion of such road suffers a deflection 
from such line not exceeding forty rods parallel distance, then 
for the purpose of improvement such road shall be deemed to- 
be wholly on such line. (Laws 1874, ch. 109, sec. 1.) 

§ 37 . k All expenses, either in money, material or labor, 
arising from the improvement of any portion of such road, 
shall be borne jointly by the counties or townships contiguous 
thereto, as the case may be. (Laws 1874, ch. 109, sec. 2.) 

§ 38 [30]. Each road overseer shall, on or before the twentieth 
day of March of each year, report to the township trustee the 
names of all persons subject to the two days’ road tax for the 



58 


KANSAS ROAD LAWS. 


preceding year, the names of those who have worked out 
said tax, the names of those who have paid said tax in money, 
and the names of those delinquent; and also all moneys re¬ 
ceived by him from all sources and how expended, and the ac¬ 
count of said road overseer of work performed by himself, 
which report shall he approved by said trustee before any final 
settlement shall be made with such road overseer. Each and 
every road overseer or other officer, who shall neglect or refuse 
to perform the several duties enjoined upon him by this act, 
or who shall on any pretense whatever give or sign a receipt 
or certificate for labor performed or money paid, unless the la¬ 
bor shall have been performed or money paid prior to the sign¬ 
ing or giving of such receipt or, certificate, every overseer so 
offending shall forfeit for every such offense not less than five nor 
more than fifty dollars, to be recovered by an action before any 
justice of the peace within the township where such overseer 
may reside; and it is hereby made the duty of every county 
attorney to prosecute all offenses against the provisions of this 
act not otherwise provided for. 

§ 39 [33]. Road overseers shall be allowed one dollar and fifty 
cents per day for all services required by this act, and actually 
performed in their respective districts, exclusive of his own 
road or poll tax, to be paid by the township treasurer on the 
order of the trustee: Provided , however , That no overseer shall 
receive pay for more than fifteen days in any one year in addi¬ 
tion to his own road tax. 

§ 40 . Each road overseer shall keep an accurate account of 
all moneys received by him by virtue of his office, and the 
manner in which the same have been disbursed, and to whom; 
and shall, on the second Thursday in January, in each year, 
exhibit such account, together with his vouchers, to the town¬ 
ship trustee, for adjustment and settlement. Such account 
.shall be in writing, verified by the affidavit of the overseer 
that the same is, in all respects, a full and true account of all 
moneys received by him during the full time for which he 
should make settlement, and of the amounts expended, and 
the manner in which they were expended. (Gen. Stat. 1868, 
oh. 110, sec. 33.) 

[Note. —At the session of 1885, the Legislature amended the above sec¬ 
tion 40 as follows: 

Sec. 13. Section thirty-three, article seven, chapter one hundred and ten, 
General Statutes of eighteen hundred and sixty-eight, is hereby amended 
so as to read as follows: Section 33. Each road overseer shall keep an accu¬ 
rate account of all moneys received by him by virtue of his office, and the 
manner in which the same have been disbursed, and to whom, and shall. 



COLLATED ROAD STATUTES. 


59 ' 


on the last Saturday in January in each year, exhibit such account, to¬ 
gether with his vouchers, to the township auditing board for adjustment 
and settlement. Such account shall be in writing, verified by the affidavit 
of the overseer, that the same is in all respects a full and true account of 
all moneys received by him during the full time for which he should make 
settlement, and of the amounts expended and the manner in which they 
were expended. (Laws 1885, ch. 168, sec. 13.) 

But the amendatory statute is of such doubtful validity, because of its 
title and otherwise, that only a decision by the court of last resort can set¬ 
tle the question. Meantime, road overseers had better seek the advice of 
their county attorneys.] 

RESOURCES FOR IMPROVING AND REPAIRING ROADS. 

Road Labor. 

§41 [18]. All male persons between twenty-one and forty-five 
years of age, who have resided thirty days in this State, who 
are capable of performing labor on public highways, and who 
are not a township charge, shall be liable each year to perform 
two days’ work of eight hours each on the public roads, under 
the direction of the road overseer within whose district they 
may respectively reside, or furnish a substitute to do the same, 
or pay the sum of one dollar and fifty cents per day to said 
road overseer, who shall receipt for the same, and expend it 
in repairs on the public roads within his district; and any 
moneys so received and not expended shall be paid over to 
his successor in office, who shall expend the same as above 
provided. 

§ 42 [19]. The overseer of highways in each road district 
shall give a notice to persons residing in his district liable to 
or charged with a road tax, of the time and place he will at¬ 
tend and direct the work to be performed, as aforesaid. The 
overseer may direct what implements such person shall bring 
with which to perform such work. 

§43 [20]. Whenever it shall happen, in consequence of sick¬ 
ness or absence from home, or any other cause, that the two 
days’ work aforesaid shall not be performed within the time 
specified in this act, the overseer shall be authorized to require 
the performance of such work at any time prior to the first 
day of October then next ensuing; and in case any person 
shall neglect or refuse to do the two days’ work or furnish a 
substitute, or pay the said sum of one dollar and fifty cents 
per day, as provided in this act, he shall be deemed guilty of a 
misdemeanor, and shall be fined in the sum of five dollars for 
such refusal so to work, upon conviction before any justice of 
the peace of the township. If any person shall appear at the 
proper time and place as directed by the overseer, and neglect 
or refuse to do a reasonable day’s work, according to his 



60 


KANSAS ROAD LAWS. 


ability, he shall be liable the same as if he neglected or refused 
to appear or furnish a substitute, or pay the said sum of money 
as provided herein. 

§44 [25]. It shall be the duty of each road overseer to receipt 
to each person who performs labor on the public highways of 
his district, under the provisions of this act, for the amount of 
labor so performed, and he shall specify the land or lands or 
the persons for which such labor was the payment of road tax, 
which receipt shall be received by the county treasurer in pay¬ 
ment of road taxes charged against the lands or persons de¬ 
scribed therein for the year; and in case the labor performed 
by any person shall exceed the amount of road tax which such 
person wishes to pay for that year, the road overseer shall give 
such person a certificate showing that such person has per¬ 
formed such amount of labor, which certificate shall be re¬ 
ceived by the county treasurer in payment of such person’s 
road tax for the following year; and the county treasurer shall 
receive no per centum on the amount of road taxes thus paid 
and receipted. 

Convict Labor. 

§ 45 . That the board of county commissioners of any county 
in this State may, whenever they may deem it advisable so to 
do, properly shackle and work, under such rules and regula¬ 
tions as they may from time to time ordain and establish, each 
and every male prisoner committed to the jail of their respect¬ 
ive counties for failing to pay the fine and costs adjudged 
against such prisoner on his conviction and increased costs, 
and also any male person failing to pay the costs adjuged 
against him as the prosecuting witness in any criminal pro¬ 
ceeding. (Laws 1881, ch. 127, sec. 1.) 

§ 46 . That the board of county commissioners may estab¬ 
lish a county stone yard, and work male prisoners mentioned 
in the first section of this act at breaking stone for use in 
macadamizing streets and roads, under such rules as they may 
from time to time ordain and establish. (Laws 1881, ch. 127, 
sec. 2.) 

§ 47 . That the board of county commissioners of the proper 
county are authorized to sell or dispose of such stone as they 
may have had broken on such terms as they may deem ad¬ 
visable, or in case they cannot sell the same, to use the same 
for the improvement of some designated road or street; and 
on making a sale of such stone, the money arising therefrom 
shall be used to pay for stone delivered at the county stone 
yard, and the remainder shall be applied to the payment of the 



COLLATED ROAD STATUTES. 


61 


fine and costs standing against the'person breaking the same. 
(Laws 1881, ch. 127, sec. 3.) 

§ 48 . In case when a prisoner shall so desire, and shall enter 
an undertaking to the proper county, with good and sufficient 
sureties, to he approved by the county clerk, that he will do 
a given or specified amount of work on some highway desig¬ 
nated by the chairman of the board of county commissioners 
of the proper county, and in a specified time, in full satisfac¬ 
tion of the said fine and costs charged against the said prisoner, 
the chairman of the board of county commissioners of the 
proper county is authorized to accept such undertaking, and 
direct the jailor to allow such prisoner to leave said jail for the 
purpose of doing the specified work. Said work may be done 
under the direction and control of some road overseer desig¬ 
nated by the chairman ofi the board of county commissioners 
of the proper county; and when said work is done or per¬ 
formed in the manner and in the time designated in said un¬ 
dertaking, the chairman of the board of county commissioners 
shall so certify on said undertaking, and said prisoner shall 
then be discharged from all liability for the fine and costs for 
which he was imprisoned: Provided , For any good and suffi¬ 
cient reason the chairman of the board of county commis¬ 
sioners may extend the time for doing the work specified in 
such undertaking. (Laws 1881, ch. 127, sec. 4.) 

§ 49 . In case the prisoner entering into the undertaking shall 
fail or neglect to do or perform the work or labor specified in 
the undertaking so given by him, the county attorney shall at 
once proceed to collect the amount specified in such under¬ 
taking, and no defense, except payment or the death of the 
principal in the undertaking during the time in which such 
principal was to do such work, shall be allowed. (Laws 1881, 
ch. 127, sec. 5.) 

§ 50 . Prisoners shall be allowed one dollar for each day’s 
work performed by them in good faith under the provisions 
of this act, or if the prisoner prefer, the board of county com¬ 
missioners may allow such prisoner a specified sum per cubic 
yard for breaking stone. The amount so earned by the day 
or by the cubic yard, when the same shall amount to the sum 
of the fine and costs, the same shall be deemed a full satisfac¬ 
tion of the fine and costs in the action for which the said 
prisoner was committed to the jail of the county. (Laws 1881, 
ch. 127, sec. 6.) 

§ 51 . The county shall not be liable for any costs by reason 
of the provisions of this act, otherwise than as herein pro- 



62 


KANSAS ROAD LAWS. 


vided, nor shall this act be construed as limiting the board of 
county commissioners of any county in their right to discharge 
any person from the jail in the manner as now provided by 
law. (Laws 1881, ch. 127, sec. 7.) 

Damages Received from Railroad Companies. 

§ 52 . Whenever, by the construction of any railroad within 
this State, the crossing of any public highway has been or 
shall be materially injured, either by excavation or embank¬ 
ments made by said railway company or corporation in the 
construction of said road, and the said railway company have 
failed to make good the said crossing, and continue to fail to 
do so for the space of ninety days after the taking effect of 
this act, it shall be the duty of the township trustee of the 
proper township to notify the board of county commissioners 
of the fact, stating the location of the crossing, the manner in 
which the crossing has been injured, obstructed, or destroyed, 
verified by affidavit of at least three of the resident taxpayers 
of said township. Thereupon it shall be the duty of the board 
of county commissioners to appoint three disinterested house 
holders of the . county to view the said crossing and assess 
the damages resulting thereto from the construction of said 
railway, and shall designate the time of meeting, and shall no¬ 
tify the railway company by written notice, not less than ten 
days previous to said meeting, to any agent or attorney of said 
railway company, of their action, stating the time and place at 
which the said viewers will meet to view the crossing, and as¬ 
sess the damages resulting therefrom. (Laws 1876, ch. 105, 
sec. 3.) , 

§ 53 . The viewers appointed under the provisions of the 
third section of this act shall meet on the day designated, and 
shall, from actual view, assess the amount of damages result¬ 
ing to the highway by the construction of said railway; which 
amount shall not be in excess of the amount of money neces¬ 
sary in their judgment to construct a good crossing, and costs 
of suit, including the necessary approaches thereto, and shall 
return to the township trustee a certificate under oath of the 
amount of damages by them assessed. (Laws 1876, ch. 105,. 
sec. 4.) 

§ 54 . It shall be the duty of the township trustee, imme¬ 
diately upon the filing with him of said certificate, to notify 
the railroad company, by written notice to any agent or attor¬ 
ney of said road, of the amount of damages assessed against 
it, and demand the payment of the same; and on failure of the- 



COLLATED ROAD STATUTES. 


63 


company to pay the amount so assessed for the period of thirty 
days thereafter, he is authorized to commence an action in any 
court of competent jurisdiction for the recovery of the amount 
of damages as aforesaid; and the certificate of the viewers 
shall be jprima facie evidence of the amount of damages sus¬ 
tained. (Laws 1876, ch. 105, sec. 5.) 

§ 55 . All moneys received under the fifty-fourth section of 
this act shall become a part of the township fund of the town¬ 
ship where the damage was sustained, and shall he used under 
the direction of the road overseer for making good the dam¬ 
ages to the public highway, sustained by reason of the building 
of said railroad. (Laws 1876, ch. 105, sec. 6.) 

Taxes. v 

§ 56 . The duties of the township trustee shall be: * * * 

Eighth , * * * shall, at the July session of the hoard of 

county commissioners, annually, with the advice and concur¬ 
rence of said board, levy a tax on the property in said town¬ 
ship for township, road and other purposes, and report the same 
to the county clerk, who shall enter the same on the proper 
tax roll in a separate column or columns, and the treasurer 
shall collect the samu as other taxes are collected; hut in a 
failure of such trusteee and commissioners to concur, then the 
hoard of county commissioners shall levy such township, road 
and other taxes. (Laws 1885, ch. 194, sec. 1.) 

§ 57 [21]. The county commissioners of each county may, at 
the time prescribed by law for levying county taxes, levy a 
road tax of not more than three mills on the dollar on all taxa¬ 
ble property in their respective counties, except the real estate 
in incorporated cities of over two thousand inhabitants, and 
the said tax may be paid in labor under the direction of the 
overseer of the district in which the property is situated by 
any able-bodied man at the rate of one dollar and fifty cents 
per day, and the same amount shall be allowed for a two-horse 
team and wagon, or team and plow. 

§58 [22]. It shall be the duty of the county clerk,'after such 
tax has been levied, to furnish to each township trustee a list 
of all the taxable real estate, and persons charged with taxes 
on personal property within their respective townships, and 
the amount of road tax chargeable to each tract or person, 
said list to be furnished on or before the first day of January 
of each year. 

§59 [23]. The trustees of the several townships, after receiv¬ 
ing the lists mentioned in the preceding section, shall proceed 



'64 


KANSAS ROAD LAWS. 


to make out lists of all the taxable real estate, and of all per¬ 
sons charged with taxes on personal property, with the amount 
of road tax chargeable to each tract and person within the 
various road districts, and deliver the same to the overseers of 
such districts on or before the first day of March of each year. 

§ 60 . All road taxes remaining unpaid on the fifteenth day 
of September shall be returned by the road overseer to the 
township trustee, or city clerk in such cities of the third class 
as have township organizations. The township trustee or city 
clerk shall, on or before the first day of October, return all 
.■such delinquent road taxes to the county clerk, who shall 
charge the same against the respective lands, lots or personal 
property on the county tax roll for the current year. (Laws 
1877, ch. 158, sec. 1.) 

§ 61 [26]. TJhe township treasurers shall receive from the 
county treasurers the road taxes paid within their respective 
townships, and the same shall be appropriated to the building 
of bridges and the repairing of roads within their respective 
townships, and the purchase of the requisite number of scrapers 
.and plows for repairing roads. 

ROAD DISTRICTS. 

§ 62 . The duties of the township trustee shall be: First, To 
divide his township into convenient road districts, and make 
such alterations in the same as may be necessary; Second, To 
fill all vacancies in the office of road overseer in his township; 
* * * Fifth, To cause a record to be made, accurately de¬ 

fining the boundaries and number of each road district, as well 
as all alterations made in such road district or districts, in his 
township, and the number of road overseers in each township. 
(Laws 1885, ch. 194, sec. 1.) 

§ 63 . Upon the petition of fifty or more freeholders of any 
municipal township to the trustee of such township, praying 
that said township be declared a single road district, it shall be 
the duty of said trustee, and he shall have the power to declare 
said municipal township a single road district, notwithstanding 
said township may contain an incorporated city, town, or vil¬ 
lage, and the order of the trustee entered on record in his 
office, from the date of the same, shall be evidence of the exist¬ 
ence of such district, and said road district shall include such 
incorporated city, town or village; and thereafter the offices of 
the district road overseers, where more than one exists in any 
such township, shall become vacant, and said trustee shall ap¬ 
point a road overseer for such road district so declared and 



COLLATED ROAD STATUTES. 


65 


•created, to hold his office until the next township election, 
when a road overseer for such road district shall be elected. 

* * * Said township trustee and road overseer shall dis¬ 

charge such other duties as are or may be imposed by law, not 
inconsistent with the provisions of this act. And for the pur¬ 
pose of repairing the roads leading into any city, town, or 
village, any two adjoining townships, or any adjoining city 
.and township, may, for the purpose, of forming a single road 
district, consolidate by the assent of the legally-constituted 
authorities of such townships, or such adjoining city and town¬ 
ship, entered on record; and the said authorities of the town¬ 
ships, or city and township, so consolidated shall appoint a 
road overseer for said road district, as provided in this section. 
{Laws 1872, ch. 174, sec. 1.) 

§ 64 . That in case where a municipal township has been 
made and declared a single road district, pursuant to chapter 
174 of the Session Laws of 1872, it shall be the duty of the 
trustee of such township, upon the petition of fifty or more 
freeholders of the township, asking that the township be di¬ 
vided into two or more road districts, to divide the same into 
two or more districts; and the order of the trustee, entered on 
record in his office, from the date of the same, shall be evidence 
of the boundaries of the districts thus formed. That the trus- 
fee of any such township shall have the power to appoint road 
overseers in all the new districts thus created until the next 
township election, when road overseers for such new districts 
shall be elected; and such overseers shall have the same powers 
and discharge the duties conferred by law upon road over¬ 
seers. (Laws 1883, ch. 149, sec. 1.) 

§65 [16]. Each incorporated city of more than six hundred 
inhabitants shall constitute a separate road district, and the 
•corporate authorities of such corporation shall have power to 
appoint a road overseer for such corporation, fix his term of 
•office and compensation, and remove him from office for any 
misconduct, and shall require him to give bond, with good se¬ 
curity, to the proper corporation for the faithful discharge of 
his duties, and for the safe-keeping and proper use of any 
money that may come into his hands, and to disburse the same 
in the manner directed by the corporation; and such overseers 
shall do and perform all the duties in the same manner and 
under the same instructions and limitations as are provided 
for the government of overseers in this act, except as herein 
otherwise provided; and the said corporate authorities of any 
such city are authorized and empowered to use the two days’ 

5 



66 


KANSAS ROAD LAWS. 


work provided for in this act, or the money paid by persons in 
the discharge of the same, in paving, macadamizing or grad¬ 
ing the streets or alleys in such city in any manner provided 
by ordinance or resolution of any such corporation: Provided r 
Such work or money shall be applied first to the most public 
streets not macadamized or graded, and that the work required 
to be done as provided for in this act shall be done between 
the 1st day of April and the 1st day of October of each year; 
and any such city shall have the power to pass any by-law or 
ordinance necessary to carry out fully the provisions of this- 
act. 

TOWNSHIP COMMISSIONERS OF HIGHWAYS. 

[The following eight sections comprise sections 1 to 8, inclusive, of 
chapter 168, Laws of 1885. The validity of this chapter is somewhat doubt¬ 
ful, perhaps, because of both the title and body of the act containing more 
than one subject-matter.] 

§ 66 . The township trustee, clerk and treasurer of each 
municipal township in the State shall constitute a board of 
• commissioners of highways and township auditing board for 
their respective townships. (Laws 1885, ch. 168, sec. 1.) 

§ 67 . The trustee shall be the chairman, and the township 
clerk shall be the clerk of said board. (Laws 1885, ch. 168,, 
sec. 2.) 

§ 68 . The said board shall hold regular meetings at the 
office of the township clerk, on the second Saturday after the 
township election, and on the last Saturday of April, July,. 
October and January, in each year, and special meetings as 
occasion may require, at the call of the chairman or any two of 
the commissioners; and no official business shall be transacted 
except at a regular meeting, or at a special meeting of which, 
all the commissioners shall have had notice. (Laws 1885, ch. 
168, sec. 3.) 

§ 69 . The clerk of said board shall keep a record of all the 
official acts and proceedings of the board, in a well-bound 
book, to be provided by the township for that purpose, which 
record shall be signed by the chairman and clerk. (Laws- 
1885, ch. 163, sec. 4.) 

§ 70 . The said board shall have charge of the roads and 
bridges of their respective townships, and it shall be their duty 
to keep the same in repair, and to improve them so far as prac¬ 
ticable. Whenever the available means at their disposal will 
permit, they shall construct permanent roads, beginning where 
most needed. The work on roads shall be done timely, and 
in accordance with the best known methods of road-making— 



COLLATED ROAD STATUTES. 


67 


by proper grading and thorough drainage, by tile, or other¬ 
wise, as may be expedient, or by the application of gravel, 
rock, or other material. (Laws 1885, ch. 168, sec. 5.) 

§ 71 . In order to insure efficiency, they may employ a gen¬ 
eral superintendent outside of their own body to work and ex¬ 
ecute their orders, or they may let contracts, appoint overseers, 
employ laborers, or such other agencies as they may deem ex¬ 
pedient and most to the interest of the township: Provided , 
No contract shall be let under the provisions of this act, except 
to the lowest responsible bidder, nor until after at least three 
publications in the county paper. (Laws 1885, ch. 168, sec. 6.) 

§ 72 . In letting contracts, employing labor, or in purchasing 
tools, machinery, or materials, the commissioners shall not 
have, directly or indirectly, any personal, pecuniary interest 
in connection therewith. The commissioners shall not have 
power to let any contract, purchase tools, machinery or ma¬ 
terials, except as ordered by the board at an authorized meet¬ 
ing. (Laws 1885, ch. 168, sec. 7.) 

§ 73 . The hoard of commisioners of highways, mentioned 
in this act, shall each receive for their services the sum of two 
dollars per day for the time actually and necessarily spent by 
them as such commissioners. (Laws 1885, ch. 168, sec. 8.) 

UNOPENED ROADS VACATED. 

§ 74 . Any county road or part thereof, which has heretofore 
or may hereafter be authorized, which shall remain unopened 
for public use for the space of seven years at any one time after 
the order made or the authority granted for opening the same, 
shall be and the same is hereby vacated, and the authority 
granted for erecting the same is barred by lapse of time; and 
any State road or part thereof, which has heretofore or may 
hereafter he authorized, which shall remain unopened for pub¬ 
lic use for the space of ten years after the passage of the act 
authorizing the same, shall be vacated, and the authority for 
opening it repealed for non-use. (Laws 1879, ch. 150.) 






*>. ■' ■ ■ ’ •, r • *•! 

,/'■ . . : T . , t) . ■ 







PART III. 


Forms and Record Entries 











# 































FORMS AND RECORD ENTRIES. 


ROAD PETITION. 

To the honorable the Board of County Commissioners of the County of. .: 

The undersigned respectfully petition your honorable body to lay out, establish and 
open to public travel in said county a public road, as follows: (Insert a description of 
the proposed road, giving the beginning, intermediate points, if any, and course, sufficiently 
full and clear to enable a practical surveyor to run it,) and we respectfully represent that 
•each of us is a householder of said county, residing in the vicinity where said road is pro¬ 
posed to be laid out, and that said road, if so laid out, will be of public utility. 


State of Kansas,..County, ss. 

., one of the above petitioners, being by me first 

duly sworn, deposes and says, that each of the persons whose names are signed to the fore¬ 
going petition, including affiant, resides in the vicinity where said road is proposed to be 
laid out, is of the full age of twenty-one years, and occupies a house in said vicinity, in 
said county, as a place of residence, and not as a boarder or lodger, and is a householder of 
said county; and that the signatures to the said petition are the genuine signatures of the 
said several petitioners, made personally by themselves, respectively. 


Subscribed and sworn to before me, this 
[seal.] 


day of 


A. D. 188... 


County Clerk. 


BOND. 

(Name all the petitioners) as petitioners, being about to present to the board of county 

commissioners of the county of.in the State of Kansas, their certain 

petition signed by them, praying said board to (establish, alter, vacate, or relocate, as the 
case may be,) a certain road in said county, described in sai 1 petition as f Hows : (Describe 
ihe road :) Now, therefore, we,.as principal..., and 

as suret., do hereby bind ourselves firmly by these presents, and do promise to pay to the 

State of Kansas, for the use of eaid county of.. the amount of all 

costs and expenses that may accrue on or in the proceedings upon and under said petition, 
in case the proceedings had in pursuance of said petition shall not be finally confirmed and 
established : Provided , however , And this obligation is upon this express condition, to wit: 
that if the said above-named petitioners shall, in case the said proceedings had in pursu¬ 
ance of said petition shall not be finally confirmed and established, themselves pay into the 
treasury of the said county of.the amount of all said costs and 




























KANSAS ROAD LA WS. 


72 


expenses when and if the same shall become due and payable by them, then this obligation 
to be void; otherwise to be and remain in full force and effect. 

Witness our hands, this.day of.. A. D. 188.... 


This bond is hereby approved by the board of county commissioners of the county of 

... in regular session, this.day of. 

D. 188..., 

By order of the Board, 


. Chairman. 

County Clerk. 


ORDER UPON PETITION. 

Came this day...principal petitioner therein, and: 

presented to the board of county commissioners a certain petition, which was in words and 
figures as follows, to wit: (Here copy petition and signatures in full,) and upon examina¬ 
tion and consideration thereof the said commissioners do find that the said petition is a 
legal one; that the signatures thereto are genuine; that the said petitioners whose names 

are signed to said petition all reside in the vicinity where said road is to be.; 

and are all householders of.?.county; *a» d that. 

one of said petitioners, has duly entered into a bond, with security satisfactory to and ap¬ 
proved by said commissioners, payable to the State of Kansas for the use of said. 

.county, conditioned that the persons signing the said bond shall pay into- 

the treasury of the said county the amount of all costs and expenses accruing on said 

.in case the proceedings had in pursuance of said petition shall not be finally 

confirmed and established; and it is, therefore, by the said board of county commissioners- 

Ordered, that.and. 

and.. who are disinterested householders of said 

county, be and they are hereby apppointed viewers of the said road so by said petition 

prayed to be.. acd that the county clerk do forthwith notify each. 

of them in writing of their said appointment; and it is further 

Ordered, that the said viewers shall meet at (describing place on line of proposed road 

where they are to meet,) on the.day of.A. D. 188..., and 

proceed to the discharge of their duties, and that the county surveyor be and he is hereby 
ordered and directed to meet with the said viewers at the said time and place, and survey 
said proposed road under their direction, and that an order be issued to him to that effect; 
and it is further 

Ordered, that the county clerk, by advertisement set up in his office, and in the town¬ 
ship... of.:..through which township... said road 

is prayed to be laid out, for at least twenty days, and by publication for two consecutive 

weeks in the.. a newspaper published in said county, shall 

give notice, and complete the same in said manner at least twenty days before the date here¬ 
inbefore fixed for said viewers to meet, setting forth that said petition has been presented* 
and the substance thereof ; and that viewers will, on the day hereinbefore fixed, proceed to 
view said road and give to all parties a hearing; and it is further 

Ordered, that a record of said notice so to be given, and as given by the said county 
clerk, be entered upon the journal of the proceedings of said board of county commis¬ 
sioners, and the said county clerk is hereby ordered and directed to enter the same thereon. 


*This finding is necessary. See 18 Kas. Rep. 132, 398. 































FORMS AND RECORD ENTRIES. 


73 


ROAD NOTICE. 

To Whom it may Concern: • 

In pursuance of an order made by the board of county commissioners, in regular ses¬ 
sion, on the...day of.A. D. 188..., notice is hereby given that. 


householders of said county, residing in the vicinity where it is proposed to. 

the road below mentioned, have presented to said board their certain petition, praying the 

.of a public road, as follows: (here copy description from petition), and. 

that.. .and. . 

viewers duly appointed, will meet at.. on the.day of. 

A. D. 188..., and proceed to view said road, and to give all parties a hearing. 

Witness my hand, and the seal of said county, affixed at my office in said. 

county, this.day of.A. D. 188... 

[seal.] . 

[The clerk should enter a copy of this notice upon the journal.] 

NOTIFICATION TO VIEWERS OF APPOINTMENT. 

To . ... and ..* 

You are hereby notified that, by an order of the board of county commissioners of the* 

county of.. made on the.day of.A. D. 188... 

you were duly appointed viewers to view the following road, which has been petitioned for, 
to wit: (describe road,) and you were, by said board, ordered to meet at (point fixed,) on 
the.day of.A. D. 188..., at which time and place the county sur¬ 

veyor will meet with you, and proceed to the discharge of your duties as such viewers. 

By order of the board. 

Witness my hand, and the seal of said county, this.day of. 

A. D. 188... . 

[seal.] County Clerk . 

ORDER TO SURVEYOR TO MEET VIEWERS. 

To .. County Surveyor of the County of. ..* 

At a meeting of the board of county commissioners of the county of... 

on the.day of.A. D. 188..., .. ..•.. 

and.were appointed viewers to view a certain proposed road petitioned 

for, to wit: (describe road,) and they were ordered to meet for that purpose at (point fixed,) 
on the.day of.A. D. 188..., and the said board directed that an or¬ 

der issue to you directing you to meet with said viewers, at said time and place. You are 
therefore directed to meet with said viewers at said time and place, and proceed to the dis¬ 
charge of your duties in that regard, as provided by law. 


By order of the board. 

Witness my hand, and the seal of said county, this.day of. 

A. D. 188... . 

[seal.] County Clerk . 


ALIAS ORDER FOR VIEW . 

[ If the viewers fail to meet, and the commissioners are so advised, the following order 
should be made and entered:] 

And now comes the said.. principal petitioner 

herein, and shows to the said board of county commissioners that the viewers heretofore 
appointed to view said proposed road and report thereon did not meet on the day desig¬ 
nated by the'said board, nor on the following secular day; and thereupon, upon applica¬ 
tion of the said petitioner, and the said board being satisfied that the said viewers did so 
fail to meet, it is by said board hereby 

Ordered, That the said...- 















































74 


KANSAS ROAD LA WS. 


and., heretofore appointed viewers herein, do meet at (de¬ 
scribing place on line of proposed road where they are to meet,) on the.day of 

.A. D. 188..., and proceed to the discharge of their duties; and that the 

county surveyor be, and he is hereby, ordered and directed to meet with the said viewers at 
the said time and place, and survey said proposed road under their direction, and that an 
order be issued to him to that effect; and it is further 

Ordered, That the county clerk, by advertisement set up in his office, and in the town¬ 
ships of..... 

through which townships said proposed road is prayed to be laid out, for at least twenty 

days, and by publication for two consecutive weeks in the. 

a newspaper published in said county, shall give notice, and complete the same in said 
manner at least twenty days before the date hereinbefore fixed for said viewers to meet, set¬ 
ting forth that said petition has been presented, and the substance thereof, and that view¬ 
ers will, on the day hereinbefore fixed, proceed to view said road, and give all parties a 
hearing'; and it is further 

Ordered, That a record of said notice so to be given, and as given by the said county 
clerk, be entered upon the journal of the proceedings of said board of county commis¬ 
sioners, and the said county clerk is hereby ordered and directed to enter the same thereon. 

[The clerk will then give notice and make up his record precisely as if a new petition 
had been presented.] 

NOTICE TO LAND-OWNER OF VIEW. 

To . 

You are hereby notified that (principal petitioner) and others, being householders of 
«aid county residing in the vicinity of said proposed road, lately presented to the board of 

county commissioners of the county of., in the State of Kansas, 

their petition praying that a road might be established as follows : (describing the road,) 
which road, if established, will run through certain lands in said county owned by you, to 

wit: (describe his tract generally); and that at a meeting of said board on the.day 

of.A. D. 188..., viewers were duly appointed to view said road, and 

were ordered to meet at (point fixed), on the.day of.A. D. 188... 

and proceeed to the discharge of their duties. You will therefore take notice of the meet¬ 
ing and proceedings of said viewers. 

...188... . 

One of said petitioners. 

AFFIDAVIT OF SERVICE. 

State of Kansas,.County, ss. 

.being first duly sworn, deposes and says that 

on the.day of.A. D. 188..., he (“delivered personally to 

.,” or, “left for him at his usual place of res.dence in said 

county, and with an adult member of his family,”) a notice to the said. 

., of which the within is a true copy. 


Subscribed and sworn to before me, this.day of.A. D. 188... 

County Clerk. 

LAND-OWNER'S APPLICATION TO VIEWERS. 

To. 

road viewers appointed to view the road petitioned for by (principal petitioner) and 

others, beginning (describe beginning of proposed road) and ending. 

in.county in the State of Kansas : 

Said proposed road will, if established, run through and upon the following described 
premises situate in said county and of which premises I am the owner, to wit: (Here de- 






























FORMS AND RECORD ENTRIES . 


75 


scribe the tract, quarter-section or otherwise,) and will cause injury thereto ; and I hereby 
claim damages and compensation accordingly, and hereby apply to you as such viewers to 
assess, determine and award to me the amount of damages to which I am entitled, and 
which I hereby allege and claim to be $. 


188... 


Owner of said premises. 


REPORT OF VIEWERS IN FA VOR OF ROAD. 

To the honprable the Board of County Commissioners of . County, 

in the State of Kansas: 

The undersigned, who were by order of your said board, made on the...day of 

.A. D. 188..., duly appointed viewers of a certain road which (naming 

the petitioners) had by their petition to your said board, prayed might be established, and 
which proposed road was described in said petition as follows : (description of road as in 
petition,) duly met with the county surveyor at the beginning of said proposed road, as 

above described, on tho.day of.A. D. 188..., and having been, 

each of us, first duly sworn as such viewers, proceeded to view, survey and lay out said 
proposed road, as nearly as prayed for in said petition as a good road can be made at a rea¬ 
sonable expense; and caused the county surveyor, under our direction, to survey said road 
as laid out by us, and to conspicuously mark the same throughout, noting the courses and 
distances ; and having so done, and having taken into consideration the utility, convenience 
and inconvenience, and expense, which will result to individuals, as well as to the public, 
if such road shall be established and opened, we hereby report that said road should be 
established and opened, and that the same is necessary and will be of public utility, and we 
hereby report in favor of the establishment of said road for the following reasons : 

[These, of course, are but suggestions for assigning reasons.] 

First: It i6 necessary to enable those living in the vicinity thereof to travel to and from 
the county seat of said county, as witnesses or jurors in courts, or on any private or public 
business, or for purposes of traffic. 

Second: It is necessary to enable the persons living in the vicinity thereof, and who are 
electors, to travel to and from the place of voting in their precinct. 

• Third: It is necessary to enable the persons living in the vicinity thereof to travel to i 
and from the postoffice at which they deliver and receive their mails, newspapers, &c. 

Fourth: It is necessary to enable the children of the persons living in the vicinity 
thereof to reach the public school house of their district. 

Fifth: It is necessary to afford John Randolph, living in the vicinity thereof, a means 
of egress from his farm to the public highway, and without said road he has no means, but 
by sufferance of his neighbors, of traveling to and from the county seat of said county, to 
the public school of his district, to the postoffice where his mail is delivered and received, 
nor to the voting place of his precinct. 

Sixth: Said road will be of public utility, by enabling persons to travel between the 
county seat of said county and the lands through which said road will run; and because it 
connects two other public roads with each other, heretofore disconnected in such a way as 
to deprive many persons of the benefit of either. 

Seven tli: Because the expense of establishing said road will not be unreasonably large 
as compared with the convenience and public utility which will result therefrom. 

Witness our hands, this.day of.A. D. 188... 


Viewers as aforesaid. 

REPORT OF VIEWERS AGAINST ROAD. 


To the honorable the Board of County Commissioners of. . County , 

in the State of Kansas: 

The undersigned, who were by order of your said board, made on the.day of 


A. D. 188..., duly appointed viewers of a certain road which (naming 




















76 


KANSAS ROAD LAWS . 

i 

the petitioners) had, by their petition to your said board, prayed might be established, and 
which proposed road was described in said petition as follows : (description of road as in 
petition,) duly met with the county surveyor at the beginning* of said proposed road as 

above described, on the.day of.A. D. 188..., and having been, 

each of us, first duly sworn as such viewers, proceeded to view, survey and lay out said pro¬ 
posed road, as nearly as prayed for in said petition as a good road can be made at a reason¬ 
able expense; and caused the county surveyor, under our direction, to survey said road as 
laid out by us, and to conspicuously mark the same throughout, noting the courses and dis¬ 
tances ; and having so done, and having taken into consideration the utility, convenience 
and inconvenience, and expense, which will result to individuals as well as to the public, 
if such road shall be established and opened, we hereby report that said road should not be 
established and opened, and that the same is not necessary, and will not be of public 
utility ; and we hereby report against the establishment of said road, for the following rea¬ 
sons : [Hints as to proper mode of assigning reasons.] 

First: Said >oad is not necessary to enable any person living in the vicinity thereof to 
reach the county seat of said county, his local postoffice, the publio school house of his dis¬ 
trict, nor the voting place of his precinct, nor his nearest town for traffic, over a public 
highway, but said persons can already reach all of said places without any serious delay or 
inconvenience, by traveling entirely over the public highway already laid out, established and 
opened to travel; and no person in the vicinity of said road needs it as a means of egress 
from his land to an established public highway; but every person living in the vicinity of 
said proposed road already has easy egress from his lands immediately to and upon an 
already opened and traveled public highway. 

Second: While some such road is pecessary to the convenience of the people living in 
the vicinity of the proposed road, and would be of public utility, yet the road as proposed 
would involve too great an expense to the county to justify its establishment. 

Third: That while some such road is necessary to the convenience of the persons living 
in the vicinity of said proposed road, and would be of public utility, yet this road as pro¬ 
posed will run through (a cemetery or a private burying ground, or will destroy or need¬ 
lessly injure a grove, or park, or pleasure ground,) on the premises of John Hancock, which 
injury to the owner thereof no mere damages can adequately compensate, while a road 
could just as conveniently be laid out that would serve the same purpose, and be just as 
beneficial and of as much public utility, without causing any such injury to any person. 
Witness our hands, this.day of.A. D. 188... 


[If a marker or chain carriers have been employed, attach to the report the following 
certificate before the place for signing the report] : 

We further report that, before proceeding with said view and survey, we deemed neces¬ 
sary to take, and did take, to our assistance.and... 

two suitable persons, as chain carriers, and. also a suitable person, as 

marker, and that each of said persons was, under our direction, necessarily and actually 

employed in said view and survey.days, for which they are severally entitled to 

compensation. 

SEPARATE REPORT AS TO ASSESSMENT OF DAMAGES. 


To the honorable the Board of County Commissioners of . County , 

in the State of Kansas: 

The undersigned, who were by an order of the said board, made on the.day of 


.A. D. 188..., appointed as viewers of a certain road which 

(names of petitioners) by their petition to said board had prayed might be established, and 
which road was in said petition described as follows : (copy description of t oad from peti¬ 
tion,) being, each of us, first duly sworn, having duly made said view and survey, now file 

* Or wherever the notice fixed for the place of meeting. 



















FORMS AND RECORD ENTRIES. 


77 




our report thereon, and together therewith, hereby make, file and submit our separate re¬ 
port of the damages assessed by us to land-owners through whose lands said proposed road 
will run if established; and we hereby report that we assessed such damages upon all ap¬ 
plications made to us in writing, and we submit herewith the written applications upon 
which said assessments were made by us. We so assessed damages as follows: 

Dolls. Cts. 

In favor of. 

tt tt 

tt tt 

bb bb 

lb bb 

Total damages as assessed. 

Witness our hands, this.day of.A. D. 188... 


Viewers as aforesaid, 

ORDER ON FAVORABLE REPORT. 

This day the petition of.. 

for the establishment of a road as follows : (copy description from petition,) came on to be 
further heard upon the certified return of the survey thereof, the plat, the report of the 
viewers, and the separate report of said viewers of the damages assessed by them, aDd the 
said return, plat and reports having all been duly delivered to and filed by the county clerk 
heretofore, and having been received by the board of county commissioners, and said 
board having caused the same to be read before its meeting, and having considered the 
same; and the report of said viewers being favorable to said road, and no legal objection to 
said report appearing, and the said board being satisfied that said road will be of public 
utility, it is, by said board of county commissioners 

Ordered, That said report, survey and plat be duly recorded by the county clerk upon 
# the road record of said county; and that said road be and it is hereby declared and shall 
be considered a public highway; and it is further 

Ordered, That the trustees of. 

townships, respectively, in which townships said road is located, be and they are severally 
and respectively ordered and directed to cause said road within their respective townships 
to be opened for public travel; and that an order to this effect be issued to each of said 
trustees. 

ORDER ON UNFAVORABLE REPORT 

This day the petition of. 

for the establishment of a road as follows : (copy description from petition,) came on to be 
further heard upon the certified return of the survey thereof, the plat, the report of the 
viewers, and the separate report of said viewers of the damages assessed by them, and the 
said return, plat and reports having all been duly delivered to and filed by the county clerk 
heretofore, and having been received by the board of county commissioners, and said 
board having caused the same to be read before its meeting, and having considered the 
same, and the report of the said viewers being against said proposed road, and said report 
being, in the opinion of said board, a just one, and it being the opinion of said board that 
said road, as applied for, is unnecessary, it is by the said board of county commissioners ; 
Ordered, That no further proceedings shall be had upon said petition ; and it is further 
Ordered, That the county clerk do demand and collect of the obligors in the bond 
given by the principal petitioner herein the full amount of all costs accrued by reason of 
the view of said road; and upon neglect or refusal of said obligors so to pay, the county 
clerk shall proceed to collect the said costs by action upon said bond, and when collected, 
with or without action, the county clerk is ordered to pay $aidjcosts into the county treas¬ 
ury of said county. 































78 


KANSAS ROAD LA WS. 


« 


ORDER TO TOWNSHIP TRUSTEE TO OPEN ROAD. 


To .-.. Trustee of . Township , in the 

County of .. 

At a meeting of the board of county commissioners, on the.day of. 

A. D. 188..., the following road, (describe road,) for which., 


principal petitioner, and others, had petitioned, was established ; and it was by said board 
thereupon ordered that an order issue to you as trustee, directing you to cause said road, so 
far as the same lies in your said township, to be opened to public travel: Now, therefore, 

You, the said.. as trustee as aforesaid, are hereby or¬ 

dered and directed to cause the above-described road, so far as it lies in your said township* 
to be duly opened to public travel. 

By order of the board of county commissioners. 

Witness my hand, and the seal of said county, this.day of. 

A. D. 188... . 

[seal.] County Cleric . 

ORDER OF TRUSTEE TO OVERSEER TO OPEN ROAD . 

To .. Road Overseer of Road District No ., . Township: 

The board of county commissioners having ordered me, as trustee, to cause the follow¬ 
ing road recently established, to wit: (describe road,) so far as it lies in said. 

.township, to be opened to public travel, you are therefore directed to open 

to public travel, as provided by law, so much of said road as lies within your said district. 

.A. D. 188.1. . 

Township Trustee . 

OVERSEERS NOTICE. 

To .: 

The road petitioned for by (principal petitioner,) and others, and which runs through a 
portion of your lands, to wit: (describe the tract of land the party owns, and through which 

the road runs,) situated in.township,.county, * 

Kansas, was on the.day of.A. D. 188..., duly established by the 

board of county commissioners of said.county, and said board has 

ordered the trustee of said township to cause said road to be opened to public travel. You 
are therefore notified to open said road through your said lands, as surveyed and marked 
by the county surveyor of said county, under the direction of the viewers of said road, 
within ninety days from the service hereof , (or, on or before the first day of January next,) 
or it mil become my duty to enter, or to depute some one to enter, upon said lands and 
open said road. 

Witness my hand, this.day of.A. D. 188... 

.. Road Overseer , 

Of District No .. of . Township , . County . 

RECEIPT OR CERTIFICATE FOR MATERIAL TO REPAIR ROADS 

AND BRIDGES . 

State of Kansas, .County,.Township, ss: 

I, the undersigned, road overseer of road district No.. in said township, hereby 

certify that I did, on the.day of., for the purpose of repairing 

a.in the road in said district, take away the following described and valued ma¬ 
terial belonging to one.. to wit: 

Description and quantity of material, (give items): ... 


Value thereof: $ 


Road Overseer . 













































FORMS AND RECORD ENTRIES. 


79 ' 


ANNUAL REPORT OF ROAD OVERSEER. 

Annual report of.. road overseer of road district. 

No., in.township, in.county, Kansas, for the 

year ending March 20, 188..., to.township board: 

First: Report of the names of persons subject to the two days’ road tax for the preced¬ 
ing year ; the names of those who have worked out said tax : the names of those who have 

1 • 

paid said tax in money; and the names of those delinquent: 


Persons subject to the 
tivo days' road tax 
for preceding year. 

Persons who have 
worked out the said 

t tX. 

Persons who have 
paid said tax in 
money. 

Persons who are de¬ 
linquent. 










Second: Account of all moneys received by him from all sources, and how expended : 
RECEIPTS AND DISBURSEMENTS. 


Date of 
Receipt, 

From whom 
Received, 

Kind of 
Fund, 

Amount, 

Date of Dis¬ 
bursement, , 

Number of 
Order, 

In whose 
Favor. 

For what 
Purpose. 

Kind of 

Fund. 

Amount. 






















Third: Account of work performed by himself : 


When work performed. 

Where ivork performed. 

Kind of work performed. 








State of Kansas,.County, ss. 

I, the undersigned, do solemnly swear that I am the above-mentioned overseer, and that- 
the foregoing report and account is in all respects true and correct, and that it contains the 
full and true account of all moneys received by me during the full period of the year end¬ 
ing... 188..., and for the time for which I should make such statement 

of account. So help me God. . 


Subscribed and sworn to before me, this 


day of. 


Road Overseer . 
.188... 







































































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